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“What are the criteria for granting an exemption? What is the trend? What are the relevant provisions?”
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Austria-
The relevant provision containing the criteria for granting an exemption is sec 2 subsec 1 Austrian Cartel Act 2005, the wording of which is almost identical with Article 81 para 3 EC. The four criteria are (i) the contribution to improving the production or distribution of goods or to promoting technical or economic progress, (ii) a fair share for consumers of the resulting benefit, (iii) the non-imposition on the undertakings concerned of restrictions which are not indispensable to the attainment of these objectives, and (iv) the agreement shall not enable the undertakings concerned to eliminate competition in respect of a substantial part of the products in question.
Stephan Polster, Dorda Brugger Jordis (Vienna), Antitrust encyclopedia: Austria, November 2007
Question.: 554 Pays.....: 137 Article..: 19333
Belgium-
As is the case with Article 81 EC, the prohibition on restrictive practices is subject to certain exemptions. Companies need to ’self-assess’ whether their agreements fulfil all conditions set out for such exemptions to apply. Individual exemptions granted under the old law remain valid. Until the expiry of the period for which such an exemption has been granted, the Competition Council may nevertheless revoke the exemption, for example, if an exemption is being abused by its beneficiary, or if the beneficiary breaches a condition attached to the exemption.
Geert A. Zonnekeyn, Monard D’Hulst (Kortrijk), Antitrust encyclopedia: Belgium, November 2007
Question.: 554 Pays.....: 6 Article..: 18808
Bulgaria-
The conditions for granting an exemption are specified in Article 13 of Bulgarian Protection of Competition Act: any agreement, decision or concerted practice may be exempted from the prohibition set forth in Article 9, if it:
contributes to the increase and improvement of the production of goods and provision of services, or to technological and economic development,
thus providing consumers with a fair share of the resulting benefits, and which:
does not impose limitations on the undertakings concerned, which limitations are not necessary for achieving the specified objectives; and
does not create conditions for elimination of competition with regard to a substantial part of the respective market.
The above four conditions should be cumulatively met in order for an exemption to be granted by the Commission (Decision No. 163/2006). Furthermore, the Commission may exempt from the prohibition under Article 9 any agreements, decisions and coordinated practices of small- and medium-size undertakings, provided these improve their competitiveness.Petko Georgiev Nikolov, Bulgarian Commission for Protection of Competition (Sofia), Antitrust encyclopedia: Bulgaria, November 2007Question.: 554 Pays.....: 339 Article..: 16003
Croatia-
The wording of the relevant provision regulating criteria for granting an exemption is almost identical to Article 81 para 3 EC. An agreement shall be granted an individual or block exemption if it contributes to improving the production or distribution of goods and/or services or to promoting technical or economic progress, while allowing consumer a fair share of the resulting benefit (Article 10 para 1 Competition Act 2003). Also the agreement may not impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives and afford such undertaking the possibility of eliminating competition in respect of a substantial part of goods and/or services constituting the subject of the agreement (Article 10 para 2 Competition Act 2003). Additional criteria for specific categories of agreements are set out in Block Exemption Regulations.
J. Pecotić Kaufman, University of Zagreb, Faculty of Economics and Business, Antitrust encyclopedia: Croatia, July 2009
Question.: 554 Pays.....: 698 Article..: 29228
Cyprus-
Summarily, the criteria for granting an exemption under Section 4(1) of the Protection of Competition Law 2008 (Law no. 13(I)/2008 provide that the agreement:
contributes to:
(i)improving production or distribution, and
(ii)promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit; but
does not
(i)impose on the undertakings concerned restrictions which are not indispensable to the attainment of those objectives; and
(ii) afford the undertaking concerned, the possibility of eliminating competition in respect of a substantial part of the products in question.
For case Law see pages 32 and 33 of the Commission’s Annual Report for 2005 and pages 23 -26 of the Commission Annual Report for 2004.Costakis Christoforou, Cyprus Commission for Protection of Competition (Nycosia), Antitrust encyclopedia: Cyprus,Question.: 554 Pays.....: 7 Article..: 16274
Czech Republic-
No individual exemptions are granted under Czech law. The undertakings involved must assess for themselves whether their behaviour falls under Article 3 para 4 of the Competition Act.
Vladimira Glatzova, Glatzova & Co (Prague), Antitrust encyclopedia: Czech Republic, November 2007
Question.: 554 Pays.....: 8 Article..: 16523
Denmark-
The criteria for granting an exemption are the same as in article article 81(3) of the EC, see s. 8 of the Competition Act: If an agreement etc. 1) contributes to improving the efficiency of production or distribution of goods or services or to promoting technical or economic progress; 2) allows the consumers a fair share of the resulting benefits; 3) does not impose on the undertakings restrictions which are not indispensable to the attainment of these objectives; and 4) does not afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products or services in question. Generally, the notification system is used only to a limited extent probably due to the extensive duration of the administrative procedure.
Camilla Jain Holtse, Bech Bruun (Aarhus), Christian Nielsen, Bech Bruun (Aarhus), Antitrust encyclopedia: Denmark, November 2007
Question.: 554 Pays.....: 9 Article..: 16788
Estonia-
The system for individual exemptions was abolished as of
1 July 2006. Now the undertakings must decide for themselves whether the agreement, practice or decision fulfils all the terms and conditions of Article 6(1) Competition Act, which provides that the prohibition set out in Article 4(1) CA is not applicable to an agreement, practice or decision, which: 1) contributes to improving the production or distribution of goods or to promoting technical or economic progress or to protecting the environment, while allowing consumers a fair share of the resulting benefit; 2) does not impose on the undertakings which enter into the agreement, engage in concerted practices or adopt the decision any restrictions which are not indispensable to the attainment of the objectives specified in paragraph 1 above; 3) does not afford the undertakings which enter into the agreement, engage in concerted practices or adopt the decision the possibility of eliminating competition in respect of a substantial part of the goods market. The Government of the Republic has also adopted block exemptions regarding vertical agreements, specialisation agreements, research and development agreements and motor vehicles.
Tanel Kalaus, Raidla & Partners (Tallinn), Antitrust encyclopedia: Estonia, November 2007
Question.: 554 Pays.....: 89 Article..: 16985
Finland-
The FCA does not grant individual exemptions.
Katri Joenpolvi, Krogerus (Helsinki), Antitrust encyclopedia: Finland, November 2007
Question.: 554 Pays.....: 33 Article..: 18754
France-
The criteria for granting the exemption set out in Article L. 420-4 Commercial Code are strictly interpreted. This means that the exemption may only apply if the practices are the direct and necessary consequence of the application of the laws or regulations prohibiting or authorising such practices. As far as the economic progress is concerned, the alleged economic progress must benefit the economy as a whole and not only the situation of the undertakings concerned. It must also be shown that the alleged economic progress is the direct consequence of the practices and that the latter are the only means of achieving such progress. It must also be shown that the economic progress achieved is significant enough to justify the restrictions of competition incurred by the practices.
The benefit of the L. 420-4 Commercial Code exemption is often raised by undertakings before the Competition Authority but is very rarely granted. In Decision No. 03-D-03 of 16 January 2003, the Competition Authority examined the clauses provided in a collective insurance contract which was imposed by the Marseille Bar Association upon its members. The Competition Authority took the view that the clauses relating to professional indemnity insurance could benefit from the exemption in so far as it was the direct and necessary application of the Law of 31 December 1971 on the organisation and regulation of the profession of “Avocat”. However, it considered that the clauses insuring the avocats against damages caused by natural disasters to clothes and objects stored in the cloakroom of the Marseille Bar Association could not be imposed on the members. The Competition Authority found that such risk did not correspond to a risk specific to the profession of avocat and, as a consequence, did not fall within the avocats’ statutory obligation to subscribe to a professional indemnity insurance.Christophe Clarenc, Latham & Watkins (Paris), Frédéric Pradelles, Latham & Watkins (Paris), Antitrust encyclopedia: France, November 2007Question.: 554 Pays.....: 10 Article..: 15608
Germany-
The criteria for exemption under § 2(1) of the Act against Restraints of Competition (“ARC”) are identical to those in Article 81(3) EC.
§ 2(2) of the Act against Restraints of Competition (“ARC”) declares the European BER applicable by analogy.
The criteria under § 3 of the Act against Restraints of Competition (“ARC”) are: (1) There is a cooperation between SME; (2) the cooperation rationalises economic processes through cooperation between undertakings; (3) the competition on the market is not substantially restricted, and (4) the agreement or decision serves the purpose of improving the competitiveness of SME.
Florian Wagner-von Papp, University College (London), Antitrust encyclopedia: Germany, November 2007
Question.: 554 Pays.....: 11 Article..: 17445
Greece-
The criteria for granting an exemption are set out in article 1(3) of Law 703/1977. The Hellenic Competition Commission consistently grants individual exemptions. See Hellenic Competition Commission Decision No 285/IV/2005, Procter & Gamble/Rolco.
Yannis Stamoulis, Coca-Cola (Athens), Antitrust encyclopedia: Greece, November 2007
Question.: 554 Pays.....: 90 Article..: 17173
Hungary-
As stated above, the possibility of applying for an individual exemption does not exist since 14 July 2005.
Case law: Gabor Fejes, Zoltan Marosi, Marton Barna, The Hungarian Competition Office concludes that the conditions for individual exemption are fulfilled in case of a joint purchasing and marketing agreement, having found that the joint-venture was not full function (Euronics), 12 July 2007, e-Competitions.Bálint Bassola, Hungarian Competition Authority (Budapest), Antitrust encyclopedia: Hungary, November 2007Question.: 554 Pays.....: 13 Article..: 18618
Ireland-
Under the Competition Act 2002, the Competition Authority
may declare that a category of agreement, decision or concerted practice is not prohibited by Section 4 if, according to the conditions set out in Section 4(5), it contributes “ to improving the production or distribution of goods or provision of services or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit and does not-
(a) impose on the undertakings concerned terms which are not indispensable to the attainment of those objectives,
(b) afford undertakings the possibility of eliminating competition in respect of a substantial part of the products or services in question.” The effect of such a Declaration is that agreements within the category in question are not prohibited by Section 4 of the Act. An example of declaration is the Declaration in respect of Exclusive Purchasing Agreements for Cylinder Liquefied Petroleum Gas, issued on the 08 March 2005 and amended in 31 March 2005.
William Prasifka, Irish Competition Authority (Dublin), Antitrust encyclopedia: Ireland, November 2007
Question.: 554 Pays.....: 14 Article..: 17462
Italy-
Regarding the possible exemptions from the prohibition of agreements restricting competition, article 4 of the Law provides for individual authorisations that the ICA (the Italian Competition Authority) can grant for a limited period to agreements which, although they restrict competition, fulfil a number of requirements broadly similar to those listed in article 81 (3) EC Treaty. In particular to be exempted, the agreements have i) to produce “the effect of improving the conditions of supply in the market”, ii) to lead “to substantial benefits for consumers”, iii) to avoid causing restrictions of competition that are not strictly necessary and iv) to avoid the elimination of competition in a substantial part of the market. The ICA (the Italian Competition Authority) generally gives an extensive interpretation of the concept of prejudice to trade between member States (as defined in Commission Guidelines 2004/C 101/07) and considers Article 81 to be applicable, thus excluding the possibility for the undertakings to give prior notification of the agreement, and requiring them to make a self assessment of the compliance of the agreements with the antitrust rules, as provided by Reg. 1/2003.
Enrico Adriano Raffaelli, Rucellai & Raffaelli (Milano), David Ottolenghi, Rucellai & Raffaelli (Milano), Antitrust encyclopedia: Italy, November 2007
Question.: 554 Pays.....: 15 Article..: 17934
Latvia-
The main criterion for an agreement to be covered by a block exemption is that the market share of one (or both) of the undertakings party to the agreement does not exceed a certain threshold. Depending on the type of agreement the relevant parties and thresholds vary. For instance, exclusive distribution agreements are block exempt if the market share of the supplier in the relevant market where goods (or services) are sold does not exceed 30%. Alternatively, exclusive supply agreements are block exempt if the market share of the buyer in the relevant upstream market where the goods are bought does not exceed 30%.
With respect to individual exemptions, the Competition Council may permit, or permit with conditions for a determined period of time, agreements otherwise prohibited by the Law, if a number of conditions are met. First, notification regarding the agreement must be submitted to the Competition Council; second, no proceedings may be initiated with regard to the notified agreement; and third, the Council must determine whether the agreement in question promotes improvements in the production or sale of goods or economic progress and thereby ultimately benefits consumers. Furthermore, it is necessary that the agreement does not impose on the market participants concerned restrictions which are not necessary for the achievement of the improvements in question in the production or sale of goods or economic progress; and does not allow for the possibility of eliminating competition in a substantial part of the specific market. The agreement is permitted if the market participants have obtained the permission of the Competition Council in accordance with procedures prescribed by the Cabinet of Ministers Regulation.Mikus Buls, University College (London), Antitrust encyclopedia: Latvia, November 2007Question.: 554 Pays.....: 91 Article..: 18297
Lithuania-
Under Article 6(1) and (2) of the Law on Competition, agreements automatically escape prohibition if they satisfy four conditions identical to those of Article 81(3) of the EC Treaty. Since 1999, there have been only four individual exemptions - for a cement distribution agreement, a liner conference, uniform beer packaging and distribution of computer games - all predating the legal exception rule.
Šarūnas Keserauskas, Office of fair trading, Antitrust encyclopedia: Lithuania, November 2007
Question.: 554 Pays.....: 92 Article..: 18133
Luxembourg-
Article 4 of the 2004 Law provides that the prohibition of cartels in accordance with Article 3 does not apply to agreements which (i) contribute to improving the production or distribution of goods or to promoting technical or economic progress while allowing consumers a fair share of the resulting benefit; (ii) do not impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives; and (iii) do not afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question.
Case law: Philippe-Emmanuel Partsch, Vincent Wellens, Luxembourg administrative courts find no anti-competitive practices in the context of a waste disposal scheme ( SuperDrecksKëscht 2), 13 November 2002, e-Competitions.Myriam Pierrat, Elvinger, Hoss & Prussen (Luxembourg), Antitrust encyclopedia: Luxembourg, October 2009Question.: 554 Pays.....: 93 Article..: 16746
Malta-
The criteria for obtaining an exemption are provided in Article 5(3) of the Act: “The provisions of subarticle (1) shall not apply in the case of - (a) any agreement between undertakings; or (b) any decision by an association of undertakings; or (c) any concerted practice, which contributes towards the objective of improving production or distribution of goods or services or promoting technical or economic progress and which allows consumers a fair share of the resultant benefit and which does not: (i) impose on undertakings concerned any restriction which is not indispensable to the attainment of the said objective; or (ii) give the undertakings concerned the possibility of eliminating or significantly reducing competition in respect of a substantial part of the products to which the agreement, decision or concerted practice refers.”
Article 6 of the Act contains a general de minimis principle to the effect that an agreement does not infringe the Act if the impact of the agreement on the relevant market at issue is minimal. In determining whether the impact is minimal, consideration is to be given to all relevant circumstances including the aggregate share of all the undertakings concerned of the relevant market. There are no stated thresholds.Adrian Mallia, Camilleri Preziosi (Valletta), Antitrust encyclopedia: Malta, November 2007Question.: 554 Pays.....: 94 Article..: 18455
The Netherlands-
As of 1 August 2004, the NMa can no longer grant individual exemptions. Nowadays, companies need to self-assess agreements in the light of the same criteria, included in paragraph 3 of Article 6 of the Competition Act. These criteria mirror Article 81(3) EC.
In general, the NMa will not provide written advice (comfort letters) as to whether an agreement fulfils the criteria of Article 6(3). However, like the Commission, it will provide advice in ‘novel’ cases.
Martijn Snoep, Debrauw (The Hague), Antitrust encyclopedia: The Netherlands, November 2007
Question.: 554 Pays.....: 16 Article..: 19056
Poland-
There are no sectoral exemptions, however the prohibition of anticompetitive practices shall not apply to agreements which at the same time:
1) contribute to improvement of the production, distribution of goods or to technical or economic progress;
2) allow the buyer or user a fair share of benefits resulting thereof;
3) do not impose upon the undertakings concerned impediments which are not indispensable to the attainment of these objectives;
4) do not afford these undertakings the possibility to eliminate competition in the relevant market in respect of a substantial part of the goods in question.
There are no individual exemptions only block exemptions apply.
The Council of Ministers may, by way of a regulation, exempt from the prohibition, certain types of agreements which meet the conditions mentioned above, taking into consideration the benefits resulting from such types of agreements. In the regulation, the Council of Ministers shall specify:
1) conditions which are to be satisfied for the agreement to be considered exempted from the prohibition;
2) clauses, the existence of which in the agreement constitutes the infringement of Article 6;
3) a period during which the exemption shall apply
and may specify clauses, the existence of which in the agreement is not considered to infringe
the prohibition of competition restricting agreements. There are guidelines included in following regulations:
Regulation of the Council of Ministers of 30 July 2007 on the exemption of certain categories of agreements concluded between entrepreneurs in connection with the performance of insurance activity from the prohibition of agreements that restrict competition.
Regulation of the Council of Ministers of 30 July 2007 regarding the exemption of certain categories of technology transfer agreements from the prohibition to establish agreements restricting competition.
Regulation of the Council of Ministers of 19 November 2007 on the exemption from the prohibition of competition restricting agreements of certain categories of vertical agreements.
Regulation of the Council of Ministers of 19 November 2007 on the exemption from the prohibition of competition restricting agreements related to certain categories of specialization and research and development agreements.
Regulation of the Council of Ministers of 28 January 2003 concerning the exemption of certain vertical agreements in the motor vehicle sector from the ban of agreements restraining competition
Marta Skrobisz, Polish Office of Competition and Consumer Protection (Varsaw), Mateusz Blachucki, Polish Office of Competition and Consumer Protection (Varsaw), Antitrust encyclopedia: Poland, November 2007
Question.: 554 Pays.....: 17 Article..: 19018
Portugal-
Article 5 of the Portuguese Competition Act sets 4 cumulative conditions, which refer to the improvement of production or distribution of goods and services, or to the promotion of technical or economic development; to a fair part of the benefit arising from those practices to the users of such goods and services; to the indispensability of the imposed restrictions to attain those objectives; and finally, that through those practices, the undertakings involved may not eliminate competition in a substantial part of the market in question. Very few undertakings and associations of undertakings have applied to the Portuguese Competition Authority under Regulation 9/2005, of 28th December 2004 since it was enacted. Since 2003, the Portuguese Competition Authority assessed 5 cases under article 5 of the Portuguese Competition Act and issued 2 decisions declaring the legality of the agreements notified (CP 02/03 - SCC-Sociedade Central de Cervejas,S.A. and CP 01/04 - Petróleos de Portugal: ). Nevertheless, in two cases of anticompetitive practices decided by the PCA, one concerning the supply of roasted coffee to HORECA channel (vertical restrictions and exclusive dealing: PRC-31/04 - NESTLÉ Portugal, S.A - 26.4.2006) and the other concerning a cooperation agreement and exclusive dealing in the production, marketing and distribution of TV channels in Portuguese and produced in Portugal broadcasted by cable television (PRC-14/01 - SIC/PT MULTIMEDIA/TV CABO - Partnership Agreement - 8.8.2006), the PCA enforced article 4 and considered whether article 5 conditions were fully met, allowing for the agreements to be cleared in both cases. That wasn’t the case, even though in the last decision the PCA concluded that one of the clauses of the agreement could be cleared under article 5 but for a limited period of time, shorter than the validity duration the parties had agreed upon. See the press releases related to both cases n.ş 9/2006 - Nestlé and n.ş 20/2006 - SIC/PTM/TV CABO.
Case Law: Miguel Gorjăo-Henriques, The Portuguese Competition Authority prohibits vertical restraints in the coffee distribution sector and imposes a fine of € 1.000.000 (Nestlé Portugal), 27 April 2006, e-Competitions, N°563, www.concurrences.com
Pablo Ibáńez Colomo, The Portuguese competition authority adopts an exemption decision under national competition law for an exclusive distribution agreement (Central de Cervejas), 28 June 2004, e-Competitions, N°186, www.concurrences.com
Teresa Moreira, Portuguese Directorate-General for Economic Activities (Lisbon), Antitrust encyclopedia: Portugal, November 2007Question.: 554 Pays.....: 95 Article..: 17981
Romania-
In accordance with the provisions of the Block Exemption Regulation, vertical agreements where the supplier has a market share of less than 30% on the relevant market and which do not contain any black clauses are exempted from the prohibition in Article 5(1).
Pursuant to Article 5(2) of the Competition Law, agreements, decisions by associations of undertakings or concerted practices may be exempted from the prohibition in Article 5(1), pursuant to an individual exemption decision granted by the Competition Council, if the conditions listed in paragraphs (a)-(d) and one of the conditions listed in paragraph (e) are met cumulatively, as follows:
a) the positive effects prevail over the negative ones or are sufficient to compensate the competition restriction caused by the respective agreements, decisions by associations of undertakings or concerted practices;
b) beneficiaries or consumers are assured a benefit corresponding to the one obtained by the parties to the respective agreement, decision or concerted practice;
c) the possible competition restrictions are indispensable for the obtaining of the expected advantages, and the respective agreement, decision made by an association of undertakings or concerted practice does not impose upon the parties restrictions that are not necessary to reach the objectives mentioned in letter e);
d) the respective agreement, decision made by an association of undertakings or concerted practice does not allow the undertakings or the associations of undertakings to eliminate competition from a substantial part of the product or service market in question;
e) the agreement, the decision made by an association of undertakings or concerted practice in question contributes, or may contribute to:
1. improving the production or distribution of goods, work performance or services supply;
2. promoting technical or economic progress, improving the quality of goods or services;
3. consolidating the competitive position of the small and medium-sized undertakings on the domestic market;
4. charging, over the long run, substantially lower prices to the consumers.
Individual exemptions are usually granted in relation to exclusive distribution agreements and horizontal agreements, to name a few.
Case Law: Carmen Peli, Adrian Ster, An overview of Romanian competition regime: Some substantive divergence with the EC competition legislation remain..., 1 January 2007, e-Competitions, N°13302,www.concurrences.com
Carmen Peli, Peli Filip (Bucharest), Antitrust encyclopedia: Romania, November 2007Question.: 554 Pays.....: 337 Article..: 17804
Russia-
General (group) exemptions regarding agreements and concerted practices pertaining to admissibility thereof, according to the Federal Law “On Protection of Competition” shall be determined by the Government of the Russian Federation on the proposal of the Federal Antimonopoly Service of the Russian Federation (FAS Russia).
Igor Artemiev, Russian Federal Antimonopoly Service (Moscow), Antitrust encyclopedia: Russia, June 2008
Question.: 554 Pays.....: 340 Article..: 19834
Serbia-
Pursuant to Article 11 of the Competition Act, an agreement which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and which does not impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives, and which does not afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question, can be exempted. Both individual (Article 12) and block exemptions (Article 13) are possible under the Serbian Competition Act. Conditions for granting block exemptions will be further elaborated by regulations, which are supposed to be adopted by 1 November 2009.
Dusan Popovic, University of Law (Belgrade), Antitrust encyclopedia: Serbia, December 2009
Question.: 554 Pays.....: 702 Article..: 29982
Slovakia-
There are no Slovak specific sector or block exemptions or provisions for granting of an individual exemption. However, the Competition Act contains criteria for self-assessment of the agreements - an anticompetitive agreement is automatically exempted from the prohibition if at the same time it:
a)contributes to the improvement of production or distribution of goods or to the promotion of technical or economic development;
b)allows consumers an adequate share of the resulting benefits;
c)does not impose on the parties to the agreement restricting competition such restrictions that are not indispensable to the attainment of the objectives of the agreement;
d)does not afford the parties to the agreement restricting competition the possibility of excluding competition in respect of a substantial part of the goods in question on the relevant market.
Axel Reidlinger, Freshfields (Vienna), Peter Oravec, Freshfields (Bratislava), Antitrust encyclopedia: Slovakia, November 2007
Question.: 554 Pays.....: 96 Article..: 19208
Slovenia-
Paragraph 2 of the Article 9 of the Competition Act provides that the Government shall specify by decree the categories of agreements to which the block exemption shall apply, and in particular:
the restrictions or contractual provisions which may or may not be contained in the agreement;
the contractual provisions which must be contained in the agreement;
other conditions which must be fulfilled.
There is no specific trend to be observed in connection with granting exemptions.
Andrej Fatur, King’s College (London), Antitrust encyclopedia: Slovenia, November 2007
Question.: 554 Pays.....: 97 Article..: 17667
Spain-
The criteria are those included in article 1.3, analogue to the four conditions of Article 81.3 of EC Treaty. The previous law included other criteria (general economic situation and general interest), though they were very seldom used in the decisional practice of the competition authority to grant authorisations.
Carlos Pascual Pons, Spanish National Competition Authority (Madrid), Antitrust encyclopedia: Spain, November 2007
Question.: 554 Pays.....: 18 Article..: 17393
Sweden-
As mentioned, Section 8 of the Competition Act provides for a directly applicable legal exemption. The conditions set are the same as that under Article 81(3) of the EC Treaty, which require that the efficiencies following an agreement outweigh the anti-competitive effects, namely that:
the agreement must contribute to improving the production or distribution of goods or promote technical or economic progress;
the agreement must pass on to consumers a fair share of the resulting benefits;
the agreement must not impose on the undertakings concerned restrictions which are not indispensable to the attainment of the positive effects; and
the agreement must not afford the undertakings the possibility of eliminating competition in respect of a substantial part of the products or services in question.
Tommy Pettersson, Mannheimer Swartling (Stockholm), Antitrust encyclopedia: Sweden, November 2007
Question.: 554 Pays.....: 19 Article..: 18490
Switzerland-
Not applicable.
Benoît Merkt, Lenz & Staehelin (Geneva), Antitrust encyclopedia: Switzerland, November 2007
Question.: 554 Pays.....: 217 Article..: 17113
Turkey-
The Board holds the exclusive power to exempt agreements upon application by the parties. The criteria for granting an exemption follow Article 81(3) EC closely. In this respect, the Board grants an individual exemption to those agreements that satisfy the following conditions:
(i) an improvement in the production or distribution of goods or in technical or economic progress;
(ii) consumers gain the benefit from such improvement;
(iii) no substantial elimination of competition in a significant part of the relevant market; and
(iv)no restriction of competition greater than what is necessary to procure the benefits under sub-sections (i) and (ii).
Ece Gursoy, Denton Wilde Sapte LLP (London), Antitrust encyclopedia: Turkey, November 2007
Question.: 554 Pays.....: 418 Article..: 19540
U.K.-
The criteria for individual exemption under Chapter I of the Competition Act 1998 (CA) prohibition mirror those under EC law.
See the guideline at paragraphs 5.1 to 5.5 and the official Journal of the European Union.
Consistent with the current position under Article 81, undertakings can no longer notify agreements for individual exemption from the Chapter I prohibition and competition authorities cannot issue such individual exemption decisions. Undertakings must self assess with their advisers whether agreements benefit from an individual exemption. The Office of Fair Trading may be prepared to give guidance or advice depending upon the circumstances.
For a case of exemption, see for example: Alex Potter, Alison Jones, The UK Office of Fair Trading has issued a draft opinion indicating that exclusive newspaper distribution arrangements granting absolute territorial protection are compatible with UK and EC competition law , 16 June 2005, e-Competitions,www.concurrences.com.Alasdair Balfour, Olswang (London), Claire Mc Comb, Olswang (London), Antitrust encyclopedia: U.K., November 2007Question.: 554 Pays.....: 12 Article..: 15746