29.12.1999 Official Journal of the European Communities L 336/21 COMMISSION REGULATION (EC) No 2790/1999 of 22 December 1999 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices (Text with EEA relevance) THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Community, Having regard to Council Regulation No 19/65/EEC of 2 March 1965 on the application of Article 85(3) of the Treaty to certain categories of agreements and concerted practices (1), as last amended by Regulation (EC) No 1215/1999 (%), and in particular Article 1 thereof, Having published a draft of this Regulation (?), Having consulted the Advisory Committee on Restrictive Prac- tices and Dominant Positions, Whereas: (1) Regulation No 19/65/EEC empowers the Commission to apply Article 81(3) of the Treaty (formerly Article 85(3)) by regulation to certain categories of vertical agreements and corresponding concerted practices falling within Article 81(1). (2)  Experience acquired to date makes it possible to define a category of vertical agreements which can be regarded as normally satisfying the conditions laid down in Article 81(3). (3)  This category includes vertical agreements for the purchase or sale of goods or services where these agree- ments are concluded between non-competing undertak- ings, between certain competitors or by certain associa- tions of retailers of goods; it also includes vertical agree- ments containing ancillary provisions on the assignment or use of intellectual property rights; for the purposes of this Regulation, the term ‘vertical agreements’ includes the corresponding concerted practices. (4)  For the application of Article 81(3) by regulation, it is not necessary to define those vertical agreements which are capable of falling within Article 81(1); in the indi- vidual assessment of agreements under Article 81(1), account has to be taken of several factors, and in partic- ular the market structure on the supply and purchase side. (5)  The benefit of the block exemption should be limited to vertical agreements for which it can be assumed with 0] 36, 6.3.1965, p. 533/65. () O] L 148, 15.6.1999, p. 1. 0] C 270, 24.9.1999, p. 7. ©) (10) sufficient certainty that they satisfy the conditions of Article 81(3). Vertical agreements of the category defined in this Regu- lation can improve economic efficiency within a chain of production or distribution by facilitating better coor- dination between the participating undertakings; in particular, they can lead to a reduction in the transaction and distribution costs of the parties and to an optimisa- tion of their sales and investment levels. The likelihood that such efficiency-enhancing effects will outweigh any anti-competitive effects due to restrictions contained in vertical agreements depends on the degree of market power of the undertakings concerned and, therefore, on the extent to which those undertakings face competition from other suppliers of goods or services regarded by the buyer as interchangeable or substitutable for one another, by reason of the products' characteristics, their prices and their intended use. It can be presumed that, where the share of the relevant market accounted for by the supplier does not exceed 30 %, vertical agreements which do not contain certain types of severely anti-competitive restraints generally lead to an improvement in production or distribution and allow consumers a fair share of the resulting bene- fits; in the case of vertical agreements containing exclusive supply obligations, it is the market share of the buyer which is relevant in determining the overall effects of such vertical agreements on the market. Above the market share threshold of 30 %, there can be no presumption that vertical agreements falling within the scope of Article 81(1) will usually give rise to objec- tive advantages of such a character and size as to compensate for the disadvantages which they create for competition. This Regulation should not exempt vertical agreements containing restrictions which are not indispensable to the attainment of the positive effects mentioned above; in particular, vertical agreements containing certain types of severely anti-competitive restraints such as minimum and fixed resale-prices, as well as certain types of territorial protection, should be excluded from the benefit of the block exemption established by this Regu- lation irrespective of the market share of the undertak- ings concerned.