One way to distinguish between horizontal and vertical cooperation between the ECJ is to examine the case law. Thus, in Consten and Grundig, the ECJ did not follow the advice of the Advocate General (GA) and found that horizontal and vertical restrictions are contained in Article 101, paragraph 1. In particular, the GA argued that Article 101 of the EUTF did not apply to vertical agreements between one producer and its distributor, as they are not competitors to the other. However, the ECJ did not agree with the GA, on the grounds that the wording of Article 101 does not distinguish between horizontal and vertical agreements. Instead, the Tribunal found that the section applies to all agreements that could distort competition in the common market. In addition, it should be noted that the ECJ generally follows the ag`s advice and that the ECJ takes a different approach from that of the GA, as shown in the court`s firm decision, that the language of the contract does not suggest a distinction between horizontal and vertical agreements. The ECJ makes less of a distinction between horizontal and vertical cooperation than that of the United States. This is probably because the ECJ is influenced by strong principles of market integration. 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. Vertical agreements: agreements for the sale and purchase of goods or services between companies operating at different levels of the production or distribution chain, such as. B than distribution agreements between manufacturers and wholesalers or retailers. 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. “vertical restriction,” a restriction of competition in a vertical agreement within the scope of Article 101, paragraph 1, of the Treaty; In deciding whether to withdraw the benefits of this regulation in accordance with Article 29 of Regulation (EC) No. 1/2003, the anti-competitive effects that may result from the existence of parallel networks of vertical agreements with similar effects that significantly limit access to or competition in a particular market. These cumulative effects can occur, for example.
B, in the case of selective ban on distribution or non-competition. The table below shows a specific text in the opinions of European jurisprudence and the GA on the differences between the horizontal and vertical agreement. “competing company,” a real or potential competitor; “effective competitor,” a company operating in the same market; a “potential competitor”, an obligation which, in the absence of the vertical agreement, would be likely, for realistic and not only theoretical reasons, to realize, in a short period of time, the additional investments or other conversion costs necessary to enter the market in question in the event of a minor but lasting increase in relative prices; The supplier`s market share includes all goods or services delivered to vertically integrated distributors for sale; When it is confirmed that the contracting parties operate at different commercial levels within the meaning of an agreement and that the agreement has an “impact on trade”, the procedure for assessing the vertical regime under Article 101 of the TFUE is, on the whole, as follows: