...
Under Art. 101 para. 3 TFEU, extensive requirements of an agreement must be fulfilled, in order an exemption to be granted. Evidence should be brought proving that the agreement improves distribution or production or promotes technical or economic progress and focuses on whether consumers are being allowed a fair share of the benefits resulting from such improvements. The indispensability of this agreement is an important factor that should also has to be demonstrated.
US agencies, on the other hand, may consider factors in their analysis such as those listed in Art. 101 para. 3 TFEU but the US rule of reason is less rigid than the EU exemption system because no factor is dispositive in that analysis. Under the rule of reason, a restrictive agreement may escape the prohibition of section 1 of the Sherman Act merely when its procompetitive effects outweigh its anticompetitivetherefore without being indispensable to improving distribution or production and without giving consumers a fair share of the benefits. The rule of reason doctrine provides a more flexible and abstract inquiry. Usually the courts consider the facts peculiar to the business to which the restraint is applied, its condition before and after the restraint was imposed, the nature of the restraint and its effect, actual or probable.
...
Art. 101 para. 3 TFEU does not exclude a priori certain types of agreement from its scope. In European law a list of per se unlawful rules does do not longer exist. Even a restriction which is qualified as “hardcore” (price and quantity fixing, market sharing) may be weighed against its anticompetitive effects under Art. 101 para. 3 TFEU and be exempted, if the respective requirements are fulfilled.
...
Both in European Union and US law, vertical agreements are considered to be less harmful than horizontal agreements. This approach is based on the notion that entering a vertical agreement each party has an interest in having the other produce more in order to maximize their profits, whereas in the horizontal agreements has an interest in having the other produce less.
II. Nature of benefits taken into account
...
