Article 101(1) of the Treaty on the Functioning of the European Union (TFEU) prohibits agreements between two or more undertakings, decisions by associations of undertakings or concerted practices: for vertical agreements which do not contain allegations of resale pricing, it is more likely that the CMA will investigate a case by written notification. In exercising these powers, the CMA must recognize solicitor-client privilege and the privilege against self-exposure under the European Convention on Human Rights. Between 2005 and 2014, the CMA/OFT published details on decisions (or other lesser enforcement measures) of about two cases of vertical restraint per year on average. In 2015, the CMA issued a decision on vertical restraints (Residential Estate Agent Services) and concluded the investigation in Hotel Online Bookings following the agreement reached by companies in other jurisdictions that were dealing with practices that also had effects on the CMA. The CMA has also published open letters on three markets. In addition, the UK Office of Rail Regulation, which is at the same time competent with the CMA, accepted, in one case, obligations to terminate the RPM (see question 16). This focus on RPM continued in 2016, with the publication in March of a report on vertical restraints, two CMA decisions in May regarding price restrictions limiting online discounts, and the launch in July of a project to monitor the use of most-favoured-nation clauses in the online hotel booking sector. In a 2003 decision on the selective distribution agreements of Lladró Comercial SA, CMA`s predecessor, the OFT, with regard to lladró`s reservation on the right to buy back goods that a retailer wished to sell below the recommended price level, stated: “Whether or not Lladró Comercial exercised this current contractual right is irrelevant to find an infringement”. 2.2 What analysis does it have to determine whether an agreement exists and (b) whether the agreement is vertical? Market definition is used to determine the restrictions of competition that an undertaking faces. In the context of vertical agreements, their main practical relevance lies in the resulting ability to determine the market shares held by the parties (and, where appropriate, by competitors) and whether the restrictions in question have an anti-competitive effect on the relevant market.
The relevant markets have a product and geographical dimension. As regards the purchasing practices of public bodies, the judgment of the United Kingdom Competition Tribunal (CAT) in the Bettercare II case is contrary to subsequent judgments of the Court of Justice of the Union in Fenin v Commission. In Fenin, the EU courts focused on the use of the purchased products, while in Bettercare II, the CAT held that the key issue was not the end use of the products, but whether the buyer was able to produce the effect on competition intended to prevent competition rules. The CMA`s Guide on the Application of the CA to Public Bodies states that “in determining whether a public body is acting as an undertaking with respect to such a purchase of goods or services in a market, the economic or non-economic character of that purchasing activity depends on the end use which is intended by the public body for the goods or services purchased”. .