2. The standard of proof required to establish the existence of an anti-competitive agreement in a vertical relationship is in principle no higher than that required in a horizontal relationship. Indeed, it is true that factors which, in the context of a horizontal relationship, can sometimes indicate the existence of an anti-competitive agreement between competitors may prove insufficient to demonstrate the existence of such an agreement in the context of a vertical relationship between a producer and a distributor, to the extent that a certain degree of contact is legitimate in such a relationship. It should be noted, however, that the assessment of the existence of an illegal agreement must take into account all relevant factors as well as the specific economic and legal context of each case. Whether it is possible to conclude, on the basis of certain evidence, that an agreement was reached in violation of Article 81, paragraph 1, EC, cannot therefore be treated in an abstract manner, depending on whether it is a vertical or horizontal relationship, as this evidence is considered separate from the context and other factors that characterize the case. 68 The Commission considers that none of the three reasons given by Activision Blizzard, which prove that the Tribunal should have made the distinction it had invoked, is persuasive. First, the Tribunal concluded that there was an agreement, not because the coordinates of the CDs and nintendo were in contact, but because the content of the documents referred to in points 56 to 66 of the contested judgment revealed a convergence of willingness to restrict parallel trade. Second, vertical anti-competitive agreements to restrict parallel trade and horizontal anti-competitive agreements can be beneficial to participants in these agreements, even if not all participants comply with these agreements. Third, it is difficult to imagine that it is more difficult to dissociate itself from anti-competitive behaviour in a vertical relationship than in a horizontal relationship. When establishing a reasonable notice period, the following circumstances are relevant: (a) the duration of the contractual relationship, b) the amount of investment costs incurred (c) the time it takes the distributor to find a reasonable alternative and (d) business habits.
With respect to the parameters mentioned above, the Supreme Court found that when the supplier terminates the contract, an exclusive right within the zone is less important than preventing the distributor from selling competitive products. In addition, the notice period should be extended if, in the event of termination, the distributor does not receive compensation for the improvement of the customer group. However, there is no rule that implies a minimum termination period related to the duration of the contract. With respect to the above circumstances, the Supreme Court found that a three-month delay was appropriate. 46 Activision Blizzard also notes that the distribution agreement signed by CD-Contact Data is consistent with previous distribution agreements between Nintendo and other parties who have in fact admitted to having participated in the illegal system, with the result of discussions between Nintendo and the Commission, and does not underestimate that active sales are lower. In these circumstances, and without evidence to the contrary, CD-Contact Data cannot be considered to have interpreted this agreement differently from what it has done with the active supply of products in areas assigned to other distributors, and vice versa. In addition, the actions of CD-Contact Data corresponded to this interpretation. The coordinates of the CDs thus facilitated passive sales to France and warned NOE against any violation of the active trade ban provided by the distribution agreement.