In general the term “vertical agreement” means an agreement entered into between two or more firms, each of which operates at a different level of the production or distribution chain. The agreement further relates to the conditions under which these firms buy or sell certain goods or services.
The Competition Act 2002 permits the Competition and Consumer Protection Commission (CCPC) to declare in writing that a specified category of vertical agreements, decisions or concerted practices are not prohibited by Irish competition law. The aim of this declaration is to provide useful guidance on vertical agreements for interested persons, and to ensure that firms can avail of the exemption provided for by the declaration.
The CCPC may amend this declaration from time to time. For example, the CCPC may exclude a particular category of goods or services where it considers that competition is significantly restricted by a large network of vertical restraints in a relevant market.
The EU Commission’s Guidelines on Vertical Restraints give practical assistance on assessing whether vertical agreements conflict with the BER. This may also be referred to for guidance in assessing whether an agreement is likely to be compliant with Irish competition law.
Paragraphs 8-11 of the EU Guidelines on Vertical Restraints refer to the EU Commission Notice on Agreements of Minor Importance (“the de minimis Notice”) and explain that because the de minimis Notice provides that such agreements are not caught by Article 101 at all, the BER does not apply to them. Because there is no de minimis notice in force under Irish law, these paragraphs cannot be relied upon as guidance for the purpose of the declaration.