2 European Commission (2010), “Commission Communication: Guidelines for Vertical Restrictions,” SEC (2010) 411. The category of agreements that can normally be considered the terms of Article 101, paragraph 3 of the treaty includes vertical agreements for the purchase or sale of goods or services where these agreements are concluded between non-competing companies, between specific competitors or specific associations of commodity traders. It also includes vertical agreements that contain subsidiary provisions relating to the transfer or use of intellectual property rights. The term “vertical agreements” should include corresponding concerted practices. To sell their products or services, manufacturers/suppliers often enter into contracts with retailers or distributors that may be broader in scope than the manufacturer/supplier. For example, a manufacturer of high-end bikes may have supply contracts with major sports dealers who have tights throughout the country. Such delivery agreements may have restrictions for each party. For example, the bicycle manufacturer may limit the total number of sports dealers allowed to sell their products.  Guidelines for Vertical Restrictions, OJ C 130, May 19, 2010, p. 1. As with the old category exemption regulation, the new vertical agreement regime is based on the basic principles of evaluation, but two basic rules of the year can be helpful. First, if the agreement is not exempted by category solely on the basis that the parties exceed market share thresholds, the risk that the agreement will violate Article 101 – if it contains restrictive agreements or has other anti-competitive effects – increases the parties` position in the market.
Second, if the agreement does not benefit from the category exemption because it contains characterized or excluded restrictions, there is a significant risk of effective violation of Article 101, even if the parties` market share is modest. In such cases, the need for such restrictions should be carefully balanced and, to the extent that they are considered essential, the parties should carefully consider whether the restrictive provisions are nevertheless regarded as individual exemptions within the meaning of Article 101, paragraph 3, of the Treaty. 1. In calculating the overall annual turnover covered by Article 2, paragraph 2, the turnover achieved by the stakeholder in the vertical agreement in the previous year and the turnover achieved by its related companies for all goods and services, excluding taxes and other taxes, are added together. To this end, the relationship between the party to the vertical agreement and its related companies, or between its related companies, is not taken into account. The European Commission has also published guidelines on vertical restrictions. It describes the approach of vertical agreements that are not covered by the regulation. This amendment has limited the scope of the BER and, in general, fewer agreements should benefit from the category exemption. In addition, compliance with the new rules can be difficult and costly, as companies now have to assess both their own market share and their buyer`s market share and information on the buyer`s market share may not be readily available.