In December 2010, the CompetitionAuthority’s new Declaration and Notice in respect of vertical agreementscame into effect. Vertical agreements are agreements between businessesoperating at different levels of the production or distribution chain(e.g., exclusive distribution and franchising agreements).
As with the previous Declaration and Notice, vertical agreements willnot be prohibited under the Irish competition rules where a marketshare test is satisfied and where no “hard-core” restrictions areincluded. The Declaration reflects the June 2010 revised EU BlockExemption Regulation (“BER”). A key change is that, in order to avail ofthe Declaration, both the supplier’s and buyer’s market shares must be30% or below. Minor changes in relation to selective distributionsystems are also included. Agreements falling outside the Declaration donot automatically infringe the Irish competition rules but must beindividually assessed.
The previous Notice provided that specified categories of agreements(e.g., non-exclusive distribution) fell outside the scope of the Irishcompetition rules. The new Notice makes no such provision but refers tothe European Commission Guidelines on Vertical Agreements (the “EUGuidelines”) as providing guidance in an Irish context. The Noticeprovides that sections of the EU Guidelines relating to buyer poolexemptions and the de minimis exemption cannot be relied upon in theIrish context.
The new rules came into effect on 1 December 2010 for new agreements.The transitional period for existing agreements ended on 31 May 2011.