Vertikaaliset sopimukset ja ryhmäpoikkeusasetukset/EN

Suomeksi

Vertical agreements — agreements between undertakings operating at different levels of production or distribution, such as distribution, agency or franchise agreements — are in principle less problematic than horizontal arrangements between competitors, but they too are subject to narrowly defined prohibited terms.

Avainkohdat

• Mistä on kyse: Most vertical agreements are permitted under the EU's block exemption regulation if the parties' market shares remain below 30% and the agreement does not contain any so-called hardcore restrictions.
• Miksi sillä on kaupallista merkitystä: Applying the block exemption removes the need to assess the agreement on a case-by-case basis — this significantly speeds up the competition law review of agreements in transactions and in the design of distribution structures.
• Mikä menee useimmin pieleen: The block exemption is lost entirely if the agreement contains even a single hardcore restriction (e.g. resale price maintenance) — in that case the whole agreement, not just that particular term, falls outside the exemption and requires an independent assessment.

Block Exemption Regulation 2022/720

The EU's revised block exemption regulation on vertical agreements ((EU) 2022/720) entered into force on 1 June 2022 and replaced the earlier regulation dating from 2010. The block exemption applies where both the supplier's and the buyer's market share remain below 30% on the relevant market. For pre-existing agreements, the transitional period ended on 31 May 2023.

Hardcore Restrictions (VBER Article 4)

Two types of restriction can fall outside the VBER's safe harbour, and their legal effect differs materially from one another. Hardcore restrictions under Article 4 are restrictions whose object is to restrict competition; if a vertical agreement contains even one such restriction, the benefit of the entire block exemption is lost for the whole agreement — under the wording of Article 4, the exemption "shall not apply to vertical agreements" containing such a restriction. The agreement must then be assessed in its entirety directly under Article 101(3) TFEU / Section 6 of the Competition Act, which in practice succeeds only rarely, because hardcore restrictions rarely meet the conditions for exemption.

This differs structurally from the excluded restrictions under Article 5, discussed in its own section below: their effect is limited to that individual contractual term alone, and the rest of the agreement can still benefit from the block exemption in the normal way.

The following terms remove block exemption protection from the entire agreement regardless of market shares:

• resale price maintenance — fixing a fixed or minimum resale price for a distributor;
• a territorial or customer-group sales restriction that restricts passive sales (as distinct from active sales, which can be restricted subject to certain conditions); and
• the de facto prevention of online sales.

The revised regulation did, however, introduce some flexibility: dual pricing (a different wholesale price for online and brick-and-mortar sales) is no longer automatically a hardcore restriction if the price difference is based on cost or investment differences linked to that distribution channel.

Käytännön huomio

When drafting distribution agreements, in addition to checking the market-share threshold it is worth checking each term separately against the list of hardcore restrictions — even a single problematic term (e.g. de facto sanctioning of a price that deviates from the recommended price) can strip the entire agreement of block exemption protection.

Excluded Restrictions (Article 5)

Unlike the hardcore restrictions under Article 4, the excluded restrictions under Article 5 of the VBER do not remove the benefit of the block exemption from the entire agreement, but only from that individual obligation (contractual term) — under the wording of Article 5(1), the exemption "shall not apply to the following obligations contained in vertical agreements". In practice, this means that if an agreement contains, for example, an excessively long non-compete obligation, that particular term falls outside the block exemption, but the rest of the agreement (e.g. the distribution arrangement, pricing terms, or territorial terms) can still meet the conditions for the block exemption in the normal way — provided the term is severable from the rest of the agreement under the applicable contract law. If the term cannot be severed, the entire agreement may be left without block exemption protection, which is why a severability clause is a recommended standard term in vertical agreements.

The excluded restrictions under Article 5 are:

• Non-compete obligations (Article 5(1)(a)): direct or indirect non-compete obligations of indefinite duration or exceeding five years fall outside the block exemption. Exception to the five-year time limit: if the buyer sells the contract goods from premises or land owned by the supplier, or leased by the supplier from a third party not connected with the buyer, the non-compete obligation may remain in force for as long as the buyer occupies the premises or land (Article 5(2)).
• Post-term non-compete obligations (Article 5(1)(b)): obligations that prevent the buyer, after termination of the agreement, from manufacturing, purchasing, selling or reselling goods or services fall outside the block exemption in principle. The block exemption may nonetheless apply to such an obligation if all of the following four conditions are met cumulatively (Article 5(3)): (i) the obligation relates to goods or services that compete with the contract goods or services; (ii) the obligation is limited to the premises or land from which the buyer has operated during the contract period; (iii) the obligation is indispensable to protect know-how transferred by the supplier; and (iv) the duration of the obligation is limited to one year after termination of the agreement. A ban on the use and disclosure of undisclosed know-how may, however, remain in force for an unlimited period without being caught by this restriction.
• Brand restrictions in selective distribution (Article 5(1)(c)): obligations that prevent members of a selective distribution system from selling the brands of specified competing suppliers fall outside the block exemption.
• Broad retail-price parity (MFN) clauses in online intermediation services (Article 5(1)(d)): obligations that prevent a buyer of online intermediation services from offering, selling or reselling goods or services to end users on more favourable terms via competing online intermediation services fall outside the block exemption. (This is the same "wide MFN clauses" item that was previously, incorrectly, placed on the Article 4 hardcore list.)

See Also

• Cartels and Horizontal Restrictions of Competition
• Fundamentals and Sources of Competition Law

Sources

Lainsäädäntö ja lähteet tarkistettu 6.9.2026.