The Commission has taken an increasingly cost-effective approach to assessing individual restrictions. As such, it takes into account a number of factors in its analysis. When deciding whether restrictions in vertical agreements are covered by Article 101, paragraph 1, the Commission`s vertical guidelines, namely: the position of suppliers in the market, are systematically taken into account in the Commission`s vertical guidelines; Buyers` position in the market Market positions with competitors barriers to access Marketing The level of trade affected by the agreement; and the nature of the product involved. Suppliers` market position is probably the most important factor in these factors. While the Commission continues to actively apply its rules on vertical restrictions, particularly in the automotive sector, it is fair to say that market liberalisation, the reduction of anti-competitive state aid and the fight against cartels have been higher priorities for implementation in recent years. Since operators often organise distribution at national level within each Member State, national and EU rules on cartels and abuse of dominant position regarding distribution by competition authorities have been adopted more frequently at Member State level than by the Commission. However, in some cases, the Commission may consider that it is better able to enforce EU rules on vertical restrictions than individual competition authorities at Member State level. Have decisions or guidelines on vertical restrictions, in any way, dealt with restrictions on the territory in which a buyer who sells on the Internet is allowed to resell contract products? The main case before the EU courts concerning private actions for damages is Courage/Crehan, a case referred by the British courts, in which the European Court of Justice states that private parties must be able to claim damages in the event of a breach of Article 101. The ECJ also clarified that infringement proceedings can themselves claim damages if, because of their weak negotiating position, it is not possible to say that they are fully responsible for the infringement. In particular, cases of vertical restrictions have been linked to the increase in e-commerce, such as competition/Samsung, in which the ECJ reviewed, in December 2016, jurisdictional rules for appeals of follow-up restrictions in selective distribution systems.
(For more information on private implementation in general, see Getting the Deal Through – Private Antitrust Litigation.) As part of its recent Digital Strategy for Europe, the Commission has identified better online access to goods and services as one of the three pillars of its Digital Single Market Strategy.