Block Exemption Regulations

by Reinhard Ellger

1. Concept, legal nature and function

a) The concept of block exemption regulations

Art 101(3) TFEU provides that the prohibition of restrictive agreements (or equivalent measures having a restrictive effect or purpose) stipulated in Art 101(1) TFEU may, under certain specified circumstances, be declared inapplicable for an ‘agreement or category of agreement between undertakings’, a ‘decision or category of decision by associations of undertakings’ or a ‘concerted practice or category of concerted practices’. Accordingly, Art 101(3) TFEU provides for two different paths by which an anti-competitive agreement (or equivalent measures with a restrictive effect or purpose) may be exempted from the prohibition of cartels: alongside the direct exemption of individual agreements, concerted practices and association decisions pursuant to the specific parameters enumerated in Art 101(3) TFEU entire categories of agreements, concerted practices and decisions may also be identified and exempted. It is this latter variety of exemptions which describes block exemption regulations.

The concept of ‘category’ as used in Art 101(3) TFEU is not defined by the treaty. Whereas its French and English language versions speak, respectively, of ‘catégorie des accords’ and ‘category of agreements’, the German version of the treaty uses the term Gruppe von Vereinbarungen (group of agreements), a term which seems to some extent less clear than the notion of catégorie or category. Yet, notwithstanding the terminological discrepancies, a common understanding of what constitutes a category of agreements under Art 101(3) TFEU has developed among the competent Union institutions. ‘Categories’ within this meaning are classes of restrictive agreements, concerted practices or decisions which relate to identical or similar sets of fact and—on the basis of a comprehensive uniformity of interests of the participating undertakings, their trade partners, their competitors and the consumers—lend themselves to a standardized legal treatment with regard to block exemption as provided for by Art 101(3) TFEU. The power of Union authorities to exempt comprehensive categories of agreements from the prohibition of Art 101(1) TFEU enables Union authorities to grant general exemptions. The classification of categories amenable to block exemption as well as the requirements and limits of this mode of exemption are determined by terms which are abstract (ie independent of the parties and contents of individual agreements) and general (ie covering an unlimited number of agreements).

b) Legal nature and effects of block exemption regulations

As block exemption regulations do not aim at individual anti-competitive agreements, but instead cover comprehensive categories of such agreements, the legal terms framing the types of agreements falling under the exemption and defining the reach and limits of the exemption must of necessity be of an abstract and general nature. Moreover, block exemption regulations relate to an undetermined multitude of agreements. Finally, the categories of agreements which might be covered by block exemption are not defined in Art 101(3) TFEU. Therefore, block exemptions require a statutory basis. Consequently, such exemptions are adopted as legislative acts under Union law. Block exemptions are granted in the form of regulations according to Art 288(2) TFEU which are binding in their entirety and are generally and directly applicable in all Member States.

c) Function

Under the old enforcement system of Reg 17/62, individual agreements could only be exempted under Art 101(3) TFEU (initially 85(3) EEC) on the basis of a specific request. The power to grant an exemption for an individual agreement was exclusively reserved for the European Commission acting as Community competition authority. The exemption of such an agreement required prior notification to the Commission and the issuance of a decision granting or rejecting the exemption. In the early years of the treaty, this procedure—especially in the field of vertical agreements—led to the Commission having to deal with a very large number of notifications. In the notification and authorization system as practised by the Commission on the basis of Reg 17/62 up until 2004, a main function of block exemption regulations was to relieve the Commission of the immense workload entailed by the high numbers of notifications brought before the Commission by undertakings in the Member States. Such block exemption regulations not only benefited the Commission by reducing its docket, they were also favourable for undertakings, ie the parties to anti-competitive agreements, as they saved them the effort and expenditure associated with the notification and authorization process for individual exemption. Specifically, block exemption regulations do not require notification and/or authorization. Their legal effect, the exemption of all agreements falling within the regulation’s ambit, takes place automatically if the agreement meets the regulation’s requirements.

The old enforcement mechanism of Reg 17/62 was replaced by the new system of Reg 1/2003, entering into force on 1 May 2004. One of the most important features of the new rules was that Art 1(2) of Reg 1/2003 declared Art 101(3) TFEU directly applicable to individual anti-competitive agreements (legal exception). If an individual agreement complies with the requirements of Art 101(3) TFEU, it is ex lege exempted from the cartel prohibition, as Art 1(2) Reg 1/2003 stipulates that ‘agreements, decisions and concerted practices caught by Article 81(1) [now Art 101(1) TFEU] of the treaty which satisfy the conditions of Article 81(3) of the treaty shall not be prohibited, no prior decision to that effect being required’. The new system of legal exception did not only alter the exemption of individual agreements, it also brought about significant changes to the function of block exemption regulations. Namely, due to the direct applicability of Art 101(3) TFEU, these regulations no longer serve the predominant purpose of reducing the number of exemption cases under the notification and authorization system but instead provide a higher level of legal certainty for the undertakings which are parties to anti-competitive agreements. As the criteria for exemption of individual agreements under Art 101(3) TFEU are vague and broadly worded, undertakings attempting to ensure that their anti-competitive agreements comply with these requirements face the risk of mis-assessment and the legal consequences thereof (nullity of the agreement, fines, claims for damages). Block exemption regulations, by contrast, provide more precise and detailed requirements for exemption and lend themselves to an easier application than the vague and imprecise criteria of Art 101(3) TFEU.

The direct applicability of Art 101(3) TFEU has cast some doubt on the legal nature of block exemption regulations and their relationship to that article. Under the old notification and authorization system of Reg 17/62, it was generally recognized that block exemption regulations were vested with constitutive legal effects (in that they created the right for an undertaking to lawfully enter (and fulfil) an agreement). Some authors in legal literature argue that block exemption regulations under the new system of legal exception as adopted by Art 1(2) Reg 1/2003 have only a declaratory effect, because they merely reconfirm a legal situation (ie the exemption of an agreement) which already exists by way of direct application of Art 101(3) TFEU. However, even under the new system of enforcement, block exemption regulations carry constitutive effects, although—as compared to the former system—to a more limited extent. This appraisal is based on the power of EU institutions to define the categories of agreements amenable to block exemption and the details under which those agreements are exempted through regulations which are binding for undertakings, competition authorities and courts in all Member States, notwithstanding the power of EU courts to conclusively interpret Art 101(3) TFEU in individual cases. This conclusion leads to an important consequence for the relationship between block exemption under the respective regulations and individual exemption under Art 101(3) TFEU. An agreement which is exempted under a block exemption regulation cannot be challenged in proceedings before national competition authorities or courts of the Member States on the ground that it does not comply with Art 101(3) TFEU. Within their scope of application, block exemption regulations take precedence over Art 101(3) TFEU. However, the Commission is vested with the power to remove the benefit of a block exemption regulation in an individual case if it determines that the application of the block exemption regulation has effects which are incompatible with Art 101(3) TFEU. Under a generally recognized principle of the interpretation of Union law, exceptions have to be construed narrowly; hence, block exemption regulations stipulate exceptions as to the prohibition of anti-competitive agreements under Art 101(1) TFEU that have to be interpreted accordingly (see eg ECJ Case C-70/93 – BMW/ALD Autoleasing [1995] ECR I-3439 para 28).

If an agreement covered by a block exemption regulation is not exempted under the regulation, because eg the undertakings concerned surpass the market share threshold provided for by the regulation, this does not necessarily mean that the agreement is conclusively prohibited under Art 101(1) TFEU. Such an agreement can be exempted by applying Art 101(3) TFEU in the individual case. It has to be taken into account, however, that agreements with especially severe anti-competitive clauses, so-called hardcore restrictions (eg price-fixing cartels, sharing of markets, customers or sources of supply, resale price maintenance) do not comply with the requirements of Art 101(3) TFEU for predictable and practical reasons.

d) Substantive requirements of block exemption regulations

The adoption of block exemption regulations is subject to the same substantive requirements which are provided for by Art 101(3) TFEU for the exemption of individual agreements. Thus, agreements falling under a block exemption regulation have to improve the production or distribution of goods or promote technical or economic progress. Moreover, such agreement must allow consumers a fair share of the resulting benefit. Furthermore, the agreements must not impose restrictions on the undertakings concerned which are not indispensable for attaining these objectives. Finally, the agreements must not grant the undertakings the opportunity to eliminate competition with regard to a substantial part of the products in question.

Although the same substantive requirements of Art 101(3) TFEU apply for the exemption of individual agreements and categories of agreements, there are some differences between the two methods of exemption which can be traced to the nature of block exemption regulations as legislative acts. A block exemption requirement defines the categories of agreements to which it applies through abstract and general terms. Therefore, a block exemption regulation may—as the case may be—encompass agreements which do not fall within the ambit of Art 101(1) TFEU, whereas the exemption of an individual agreement directly through Art 101(3) TFEU is only possible if the agreement is prohibited under Art 101(1) TFEU.

2. Power to adopt block exemption regulations

After the coming into force of the old enforcement rules laid down in Reg 17/62, a conflict arose between the Council and Commission about the power to adopt block exemption regulations. The Commission took the view that it was vested with the power to issue block exemptions by way of decision within the meaning of Art 288(3) TFEU. Contrary to this view, the Council expressed the opinion that the adoption of block exemptions had to be characterized as a form of rule-making which required the legislative form of a regulation. Under the general scheme of powers granted by the treaty to the EU institutions, regulations have to be adopted by the Council, not by the Commission. Finally, the Council and Commission reached a compromise to end this conflict. They instituted a two-stage law-making process for block exemption regulations, under which—at the first stage—it is up to the Council to define by regulation the categories of agreements amenable to block exemption and the basic requirements for exemption. At the second stage, the Commission—also by regulation—prescribes the detailed requirements under which these agreements were exempted. The Council adopted so-called ‘empowering regulations’ (Ermächtigungsverordnungen), which were comprehensively used by the Commission in its block exemption regulations that cover a wide range of agreements. Since the entering into force of the Lisbon Treaty, this unwritten practice of adopting block exemption regulations has been transformed into written Treaty law. Now, Art 105(3) TFEU provides for an express legal basis under which the Commission is empowered to adopt block exemption regulations.

3. Basic normative structure of block exemption regulations

a) Traditional legislative approach

Block exemption regulations which were adopted through the end of the 1990s were characterized by the Commission’s efforts to provide enterprises a clear orientation for the wording of anti-competitive clauses in their contracts with other undertakings. In accordance with this approach, these older regulations listed contract clauses which were exempted if used in an agreement (‘white list’). On the other hand, the regulations also defined clauses which—because of their especially grave anti-competitive effects—prevented exemption if inserted in an agreement (‘black list’). Furthermore, some of these block exemption regulations named clauses which were only exempted if the undertakings concerned notified the agreement to the Commission and the Commission did not raise objections to those agreements within a prescribed period after notification (‘grey list’). This legislative approach led to substantial problems in practising block exemption regulations. In a case involving former Reg 17/67 on exclusive distribution, the European Court of Justice (ECJ) ruled that the inclusion of anti-competitive clauses which were not contained in the ‘white list’ of the respective block exemption regulation barred the application of the regulation to that agreement in its entirety (ECJ Case 22/71 – Béguelin Import/G.L. ImportExport [1971] ECR 949, paras 19/22 and 23/25). By interpreting the scope of application of block exemption regulations very narrowly, this decision laid the basis for the so-called ‘principle of all-or-nothing’, which was met with considerable criticism by undertakings and their associations as being overly inflexible and unduly strict. Moreover, this narrow approach had the effect that undertakings came under a strong pressure to accommodate their agreements to the clauses contained in the ‘white list’ of block exemption regulations. To make sure that an agreement was exempted under the relevant block exemption regulation, the interested undertakings tended to include the clauses of the regulation’s ‘white list’ verbatim in their agreements. Thus, these clauses became an integral part of the contracts concluded between undertakings. This approach resulted in a substantial inflexibility in the wording of contracts which prevented innovative contract clauses because the undertakings feared the risk that the block exemption regulation would not apply to the relevant agreement as novel clauses would not correspond to the ‘white list’. The inflexibility caused by this approach was criticized in legal writing as a ‘strait-jacket approach’.

b) Basic normative structure of modern block exemption regulations

The negative effects caused by block exemption regulations of the older type finally urged the Commission to give up the traditional approach and to introduce important new features to the normative structure of block exemption regulations. The first block exemption regulation of the modern type was adopted by Commission Regulation 2790/1999 of 22 December 1999 on the application of Art 81(3) of the Treaty [now Art 101 (3) TFEU] to categories of vertical agreements and concerted practices. This regulation encompassed all categories of vertical agreements and replaced three block exemption regulations passed by the Commission in the 1980s that covered exclusive distribution agreements, exclusive purchasing agreements and franchising agreements. Regulation 2790/1999 was replaced by Commission Regulation 330/2010 of 20 April 2010, which implemented minor changes.

Within the field of vertical agreements, only vertical agreements in the motor vehicle sector are covered by a block exemption regulation separately from Reg 330/2010, namely by Reg 461/2010 of 27 May 2010 on the application of Art 101(3) of the Treaty on the Functioning of the European Union (TFEU) to categories of vertical agreements and concerted practices in the motor vehicle sector.

The new legislative approach was subsequently generalized by the Commission through its being made the basis of five other block exemption regulations. The altogether six block exemption regulations of the new type which are presently in force cover the exemption of anti-competitive agreements in the economic sectors that are most important in practice.

Regulation 2790/1999 and the subsequent block exemption regulations, for which the former served as blueprint, no longer provide for ‘white, black or grey lists’ which lead to the exemption of an agreement or to the non-applicability of the regulation. The modern block exemption regulations rather define categories of agreements, which—as a matter of principle—are exempted from the prohibition of Art 101(1) TFEU if such agreements comply with the requirements of the regulations. For example, Reg 330/2010 on vertical agreements covers all agreements between undertakings which operate ‘at a different level of the production or distribution chain, and relating to the conditions under which the parties may purchase, sell or resell certain goods or services’ (Arts 1(1)(a), 2(1) Reg 330/2010). Similarly, Reg 1218/2010 on specialization agreements applies to all unilateral and reciprocal specialization agreements between undertakings. The exemption of such broadly defined categories of agreements through block exemption regulations is limited by a list of so-called hardcore restrictions (Kernbeschränkungen). Hardcore restrictions are contractual clauses which lead to an especially severe restraint of competition. If an agreement contains such hardcore restrictions (eg price-fixing; resale price maintenance; sharing of markets, territories or customers), it is in its entirety not amenable to exemption under the respective regulation. Moreover, certain non-compete obligations are not exempted by block exemption regulations. But contrary to hardcore restrictions which exclude the applicability of a block exemption regulation to an entire agreement, non-compete clauses are perceived by the block exemption regulations as separable from the rest of the agreement so that the block exemption regulation is applicable to the agreement if the non-compete obligation is removed or accommodated to the requirements of the regulation. In cases in which agreements are not exempted under a relevant block exemption regulation, an individual exemption directly by application of Art 101(3) TFEU comes into consideration. However, agreements containing hardcore restrictions will—as a matter of practical experience—not be amenable to individual exemption directly under Art 101(3) TFEU because such agreements will hardly ever comply with the requirements of this provision.

A typical feature of all modern-type block exemption regulations is the adoption of a market share threshold. Such a threshold makes the legal effect of a block exemption regulation dependent upon the fact that the combined or individual (as provided for by the relevant regulation) market share of the concerned undertaking(s) falls short of a defined limit. The height of the market share thresholds as contained in the different block exemption regulation differs, but it does not exceed 30 per cent. The purpose of market share thresholds is to prevent the benefit of a block exemption regulation from being extended to agreements concluded by undertakings having—individually or collectively—significant market power. Thus, the block exemption regulations are meant to ensure compliance with the requirement of Art 101(3) TFEU that an agreement cannot be exempted if it grants the opportunity to the undertakings concerned to eliminate competition with regard to a substantial part of the relevant market.

4. Survey of the block exemption regulations presently in force

On the basis of the Council’s ‘empowering regulations’, the Commission has adopted several modern-type block exemption regulations between 1999 and 2010. These regulations cover the exemption of agreements with anti-competitive clauses in a wide range of economic sectors and especially encompass agreements concluded by small and medium-sized enterprises. Block exemption regulations operate under more concrete and detailed requirements than individual exemptions under the vague and broadly worded Art 101(3) TFEU. Consequently, block exemption regulations provide a higher degree of legal certainty for undertakings as well as competition authorities and courts in the Member States charged with the enforcement of Art 101 TFEU.

a) Regulation 330/2010 (vertical agreements and concerted practices)

Regulation 330/2010 comprehensively covers all vertical agreements which contain anti-competitive clauses. The Commission assumes that vertical agreements which do not provide for hardcore restrictions can possibly lead to efficiency improvements in the fields of production and distribution of goods and services. Regulation 330/2010 links its exemptive effect to a market share threshold of the supplier not exceeding 30 per cent of the relevant market on which it sells the contract goods or services and of the buyer not exceeding 30 per cent of the relevant market on which it purchases the contract goods or services. The market share threshold for the buyer is a novel feature within Reg 330/2010 which was not part of any of its predecessors. The new requirement is supposed to reflect market power on the buyer’s side which, in practice, has become relevant especially in the food retail business. According to its Art 4, Reg 330/2010 does not apply to agreements with certain hardcore restrictions such as, for example, resale price maintenance, restriction of the territory in which the buyer may sell or restriction of cross-supply for distributors within a selective distribution system. Moreover, under its Art 5, the regulation does not exempt clauses within vertical agreements which contain certain non-compete obligations. Regulation 330/2010 remains in force until 31 May 2022.

b) Regulation 1218/2010 (specialization agreements)

Commission Regulation 1218/2010 of 14 December 2010 on the application of Art 101(3) of the Treaty on the Functioning of the European Union to certain categories of specialization agreements is based on the assumption that agreements between undertakings on specialization might lead to efficiency improvements, as the enterprises concerned are in a position to manufacture their products more efficiently and offer them at a better price to consumers. The regulation covers unilateral and reciprocal specialization agreements as well as joint production agreements. Under Art 3 of Reg 1218/2010, an agreement can only be exempted under the regulation if the aggregated market share of the undertakings concerned does not exceed 20 per cent. Article 4 declares the regulation inapplicable to agreements which contain certain hardcore restrictions such as, for example, the fixing of prices for sales to third parties, the limitation of output or sales or the allocation of markets or customers. Regulation 1218/2010 entered into force on 1 January 2011 and expires on 31 December 2022.

c) Regulation 1217/2010 (agreements concerning research and development)

Regulation 1217/2010 of 14 December 2010 on the application of Art 101(3) of the Treaty on the Functioning of the European Union to certain categories of research and development agreements proceeds on the assumption that cooperation between undertakings in the field of research and development has positive economic effects: it contributes to technical and economic progress, stimulates innovation and prevents the duplication of research efforts and investments. Regulation 1217/2010 covers agreements between two or more undertakings relating to joint research and development including joint exploitation of the respective results, agreements on the joint exploitation of results stemming from joint research under a preceding agreement and finally agreements on joint research and development without joint exploitation of results. The regulation, however, does not apply to agreements between competing undertakings if the aggregated market share of the undertakings concerned exceeds 25 per cent. According to Art 5 Reg 1217/2010, agreements are not exempted under the regulation if they contain hardcore restrictions such as, for instance, the fixing of prices for contract products with regard to sales to third parties or restrictions of the freedom of the parties to the agreement to carry out research and development projects unconnected to research and development activities covered by the agreement. Regulation 1217/2010 entered into force on 1 January 2011 and expires on 31 December 2022.

d) Regulation 461/2010 (vertical agreements in the motor vehicle sector)

Regulation 461/2010 of 27 May 2010 on the application of Art 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices in the motor vehicle sector covers vertical agreements in the field of spare parts for cars and repair and maintenance services. The motor vehicles market is characterized by certain peculiarities: a relatively small number of car manufacturers deal with a very large number of distributors and repair shops. Vertical agreements as usually concluded in the motor vehicle sector frequently include elements of exclusive distribution, exclusive supply, selective distribution systems, restrictions of territory of sales and customers as well as non-compete obligations. Due to the particular conditions on the motor vehicle markets, the predecessor regulation of Reg 461/ 2010, Reg 1400/2002, provided for a comprehensive set of rules covering vertical agreements with regard to the distribution of new cars, the distribution of spare parts and the provision of repair and maintenance services. Regulation 1400/2002 expired on 31 May 2010. Based on a comprehensive market analysis conducted before the adoption of Reg 461/2010, the Commission reached the conclusion that conditions for competition on the market for the distribution of new motor vehicles were no different from competitive conditions for the distribution of goods and services in other markets. Consequently, vertical agreements relating to the distribution of new motor vehicles do not require a special block exemption regulation particularly designed for this market but are exclusively covered by Reg 330/2010 for vertical agreements in general (save for a transitional period which extended the applicability of Reg 1400/2002 until 1 June 2010 in order to allow car manufacturers to adjust their agreements to the requirements of Reg 330/2010). However, for the so-called motor vehicle aftermarket (markets for the distribution of spare parts and the provision of repair and maintenance services) the Commission’s market analysis found that the competitive forces effective in these markets were not strong enough to leave the block exemption of vertical agreements in these sectors solely to Reg 330/2010 for vertical agreements in general. This is why Reg 461/2010, which replaced Reg 1400/2002 as of 1 June 2010, exempts vertical agreements relating to the motor vehicle aftermarket from the prohibition of Art 101(1) TFEU, if they comply with the requirements of Reg 330/2010 and do not contain certain hardcore restrictions which are specified in Reg 461/2010. Article 5 of that regulation stipulates a set of hardcore restrictions which particularly reflect the market conditions of the motor vehicle aftermarket and go beyond the hardcore restrictions provided for by Reg 330/ 2010 for vertical agreements in general. Thus, eg, the restriction of the sales of spare parts for cars by members of a selective distribution system to independent repairers which use the parts for repair purposes is qualified as a hardcore restriction which excludes the benefit of block exemption for the respective agreement. Regulation 461/2010 entered into force on 1 June 2010 and expires on 31 May 2023.

e) Regulation 267/2010 (insurance sector)

Regulation 267/2010 of 24 March 2010 on the application of Art 101(3) of the Treaty in the Functioning of the European Union to certain categories of agreements, decisions and concerted practices in the insurance sector covers the exemption by category of agreements between insurance and reinsurance companies with regard to two precisely defined parts of business activities of such companies, namely the joint compilation of information, eg for the calculation of the average cost of covering specific risks in the past or for the construction of mortality tables and tables showing the frequency of illness accident and invalidity in connection with insurance involving an element of capitalisation, as well as the common coverage of certain types of risk. In respect of the common coverage of certain risks, Reg 267/2010 provides a maximum market share of 20 per cent for co-insurance groups and 25 per cent for co-reinsurance groups. Regulation 267/ 2010 entered into force on 1 April 2010 and expires on 31 March 2017.

f) Regulation 772/2004 (technology transfer agreements)

Technology transfer agreements contribute to the dissemination of technological knowledge by way of granting licences for the use of intellectual property rights and know-how. Those agreements advance technical and economic progress and may eventually lead to efficiency gains in the production of goods and services within the meaning of Art 101(3) TFEU. Regulation 772/2004 of 27 April 2004 on the application of Art 81(3) of the Treaty to categories of technology transfer agreements provides for the exemption of technology transfer agreements between two undertakings permitting the production of contract products. The exemption under the Technology Transfer Regulation is dependent on compliance with certain market share thresholds. In case of agreements between competing undertakings, their aggregated market share must not surpass 20 per cent, while in the case of an agreement between non-competing undertakings, the threshold is a market share of 30 per cent. Article 4 of Reg 772/2004 provides for a list of hardcore restrictions which exclude the applicability of the block exemption regulation to the respective agreement. Regulation 772/2004 entered into force on 1 May 2004 and will remain in force until 30 April 2014.

g) Other block exemption regulations

In addition to the aforementioned acts, there exist further block exemption regulations covering the exemption by category in certain sectors of maritime and air transport as well as rail, road and inland waterway transport.

5. The transplant of block exemption regulations into German competition law

Article 101 TFEU has been transplanted into § 1 (prohibition of anti-competitive agreements) and § 2 (exemption) of the German Act against Restraints of Trade (Gesetz gegen Wettbewerbsbeschränkungen (GWB)) through the 7th Amendment to the GWB (Act of 7 July 2005, Bundesgesetzblatt (German Federation’s Official Journal) I, 2546). As provided by § 2(2) GWB, the block exemption regulations of European Union law are applicable as German law when it comes to the question whether an agreement is exempted from the prohibition of anti-competitive agreements. The application of the block exemption regulations as German law does not presuppose that the respective agreement is capable of affecting trade between Member States.

Literature

DG Goyder, EC Competition Law (3rd edn, 1998) 177–260; Ernst-Joachim Mestmäcker and Heike Schweitzer, Europäisches Wettbewerbsrecht (2nd edn, 2004) §§ 12, 14; Volker Emmerich, Kartellrecht (10th edn, 2006) § 5 II; Thorsten Mäger, ‘Kartellrecht’ in Reiner Schulze and Manfred Zuleeg (eds), Europarecht. Handbuch für die deutsche Rechtspraxis (2006) § 16, part C; Markus Buchner, EG-Kartellrecht und Vertriebssysteme, insbesondere der KFZ-Vertrieb (2006); Jonathan Faull and Ali Nikpay, The EC Law of Competition (2nd edn, 2007) paras 9.01–9.359; Peter Roth and Vivien Rose (eds), Bellamy & Child: European Community Law of Competition (6th edn, 2008) paras 6.001–6.196.