Black Clauses. There are still some restrictions on how to draft the agreement so it falls under the Block Exemption. The list of white clauses is taken away but there are still five black clauses. The inclusion of a black clause directly removes 99 Commission Regulation 2790/1999 art. 2(4). 100 Commission Regulation 2790/1999 art. 5. 101 Commission Guidelines on Vertical Restraints para. 61. the agreement from the scope of the exemption.103 Furthermore, the Rule of Severability does not apply and individual exemption is most unlikely.104 The first black clause prohibits direct or indirect resale price maintenance (RPM) in the agreement. To fix the price at which a buyer is to sell the goods with the effect of destroying all intra-brand price competition, is a clear-cut way of effectively annihilating competition. The prohibition applies both to RPM obtained by direct and indirect means.105 The second hard-core restraint concerns agreements which have as their object or effect the partitioning of the market. Passive resale must always remain possible whereas restrictions on active resale can be justified under some circumstances.106 The Commission has chosen to keep the distinction between passive and active sales even in times of IT and E-commerce.107 To use the Internet to advertise products will be regarded as passive sales, whereas involving in more direct contact with customers, for example by sending e-mails, will be seen as active sales.108 Furthermore, a supplier cannot restrict the retailers in a selective distribution system to resell only to certain end-users. Selective distribution is acceptable at the retail level to guarantee the quality of services provided by the retailers to suit a special brand. To combine it with restrictions on the retailer would create a double protection for the manufacturer’s goods, and enable the suppliers to divide the market between different dealers. The fourth hard-core restriction also deals with selective distribution systems. Members of a selective distribution system must not be deprived of the right to cross supply between them. Once the distributors are selected they have the right to obtain the goods from any approved source. Thus a selective distribution system can not be combined with, for example an exclusive purchase clause. Finally, the last provision concerns agreements that prevent or restrict independent repairers and service providers from getting access to spare parts directly from the supplier. Agreements bet...
