Definitions

1. For the purposes of this Regulation, the following definitions shall apply:

‘specialisation agreement’ means a unilateral specialisation agreement, a reciprocal specialisation agreement or a joint production agreement;

‘unilateral specialisation agreement’ means an agreement between two or more parties which are active on the same product market and under which one or more parties agree to fully or partly cease production of certain products or to refrain from producing those products and to purchase them from another party or parties, which agree to produce and supply them;

‘reciprocal specialisation agreement’ means an agreement between two or more parties which are active on the same product market and under which two or more parties, on a reciprocal basis, agree to fully or partly cease or refrain from producing certain but different products and to purchase those products from one or more of the other parties, which agree to produce and supply them;

‘joint production agreement’ means an agreement under which two or more parties agree to produce certain products jointly;

‘agreement’ means an agreement between undertakings, a decision by an association of undertakings or a concerted practice;

‘product’ means a good or a service, including both intermediary goods or services and final goods or services, with the exception of distribution and rental services;

‘production’ means the manufacture of goods or the preparation of services, including by way of subcontracting;

‘preparation of services’ means activities carried out upstream of the provision of services to customers;

‘specialisation product’ means a product which is produced under a specialisation agreement;

‘downstream product’ means a product for which a specialisation product is used as an input by one or more of the parties and which is sold by those parties on the market;

‘relevant market’ means the relevant product and geographic market to which the specialisation products belong, and, in addition, where the specialisation products are intermediary products that are fully or partly used captively by one or more of the parties as inputs for the production of downstream products, the relevant product and geographic market to which the downstream products belong;

‘competing undertaking’ means an actual or potential competitor:

‘actual competitor’ means an undertaking that is active on the same relevant market;

‘potential competitor’ means an undertaking that, in the absence of the specialisation agreement, would, on realistic grounds and not just as a mere theoretical possibility, be likely to undertake, within not more than 3 years, the necessary additional investments or other necessary costs to enter the relevant market;

‘exclusive supply obligation’ means an obligation not to supply the specialisation products to a competing undertaking other than a party or parties to the specialisation agreement;

‘exclusive purchase obligation’ means an obligation to purchase the specialisation products only from a party or parties to the specialisation agreement;

‘joint’, in the context of distribution, means activities where the work involved is:

carried out by a joint team, organisation or undertaking; or

undertaken by a jointly appointed third party distributor on an exclusive or non-exclusive basis, provided that the third party is not a competing undertaking;

‘distribution’ means the sale and supply of the specialisation products to customers, including the commercialisation of those products.

2. For the purposes of this Regulation, the terms ‘undertaking’ and ‘party’ shall include their respective connected undertakings. ‘Connected undertakings’ means:

undertakings in which a party to the specialisation agreement, directly or indirectly has one or more of the following rights or powers:

the power to exercise more than half the voting rights;

the power to appoint more than half the members of the supervisory board, board of management or bodies legally representing the undertaking;

the right to manage the undertaking’s affairs;

undertakings which directly or indirectly have, over a party to the specialisation agreement, one or more of the rights or powers listed in point (1);

undertakings in which an undertaking referred to in point (2) has, directly or indirectly, one or more of the rights or powers listed in point (1);

undertakings in which a party to the specialisation agreement together with one or more of the undertakings referred to in points (1), (2) or (3), or in which two or more of the latter undertakings, jointly have one or more of the rights or powers listed in point (1);

undertakings in which one or more of the rights or powers listed in point (1) are jointly held by:

parties to the specialisation agreement or their respective connected undertakings referred to in points (1) to (4); or

one or more of the parties to the specialisation agreement or one or more of their connected undertakings referred to in points (1) to (4) and one or more third parties.

COMMISSION REGULATION (EU) 2023/1067 of 1 June 2023 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to certain categories of specialisation agreements