Maximum prices generally do not pose a risk to competition, as they often protect consumers from higher prices and therefore pose a low risk. However, given the risks associated with price restrictions for resale, each program should be carefully considered by antitrust law. In some cases, competition law prohibits dominant companies from requiring a buyer to purchase product A (the “linked” product) in order to purchase product B (the “binding product”). On the other hand, the mere offer of a discount to customers who purchase several products or services together does not normally infringe competition law, as long as customers also have the realistic possibility of purchasing the products or services separately. Even if Honeyrose had felt compelled to accept the split, it could still have protected itself by negotiating a commitment from Lola`s to buy a minimum volume or value. While this would have lagged behind total exclusivity, it could have provided significant protection against Lola`s decision to self-sufficient. Unfortunately for Honeyrose, the agreement did not contain a minimum enforceable purchase obligation. In the present case, it is essential that the Contracting Party designated as a commercial agent is actually such a professional by virtue of his duties and that he does not carry out, in the course of his activity, any activity specific to an independent trader. The Commission considers that the decisive criterion which distinguishes the commercial agent from the independent trader is the agreement, express or implied, concerning liability for the financial risks associated with the sale or performance of the contract. Thus, the Commission`s assessment is not based on the name used to describe the representative. Apart from delkredere`s Usual Warranty, a commercial agent cannot assume any risk arising from the company due to his duties. If it takes such risks, its function becomes economically comparable to that of an independent operator, so that it must be treated as such for the purposes of the competition rules.
In this case, exclusive distribution agreements shall be considered as agreements concluded with independent economic operators. Merida Bikes – Acts of the President of the UOKiK* Does the sale of Merida bikes in Poland violate the rules of the competition? Tomasz Chróstny, President of the Office of Competition and Consumer Protection, issued a statement against Merida Polska. Due to the practices of (…) II. Unlike contracts with commercial agents referred to here, exclusive distribution agreements with independent economic operators may very well fall within the scope of Article 85(1). In the case of such exclusive decisions, the restriction of competition lies either in the restriction of supply if the seller undertakes to supply a particular product to only one buyer, or in the limitation of demand if the buyer undertakes to purchase a particular product from a single seller. In the case of mutual undertakings, competition is restricted by both parties. Whether such a restriction of competition may affect trade between Member States depends on the circumstances of the individual case. A 100% contractually watertight exclusivity clause can still be challenged if it violates EU or UK competition law (in which case exclusivity is unenforceable and, in some cases, the parties may even face fines). The application of competition law to such clauses can be complex and requires a detailed analysis in each case.
The timing of this latest work in the impressive series of Competitions projects could hardly have been more appropriate. 2020 was a record year for decisions involving judicial review of enforcement decisions in unilateral cases, both in the EU and before national courts. At the same time, however, among the main unilateral cases pending before the Court, three – Intel (on revocation), Google (Shopping) and Google (Android) – are still under deliberation at the time of writing, with judgments expected this year or next. Lawyers, economists and, above all, companies that run the risk of being considered dominant, especially in the digital sphere, will be guided by the judgments in these cases, each of which has its own facts, in order to clarify the analytical framework for determining whether and in particular why the unilateral behavior of a dominant company crosses the – sometimes too obscure – border of counterfeiting. It therefore seemed to the editors that, while many practitioners were waiting for these three judgments (and then, in all likelihood, the results of any appeal), it might be useful to look back at the last few years to see how the judicial review of the decisions of the competition authorities, both the Commission and the national authorities (NCAs), has evolved. CCI`s decision-making practice also shows that market shares are often seen as a key indicator of market power. For the purposes of the assessment of exclusivity clauses under Article 3(4) of the Act, the ICC may require undertakings to hold at least 30 % of the relevant market share in order to consider that it has sufficient market power for the emergence of the AAEC.6 This is in line with the assessment of vertical restraints under EU competition law, where the Guidelines on vertical restraints provide: that vertical restraints may raise competition concerns only if the market share thresholds exceed 30 %. The double price will charge the same retailer a higher wholesale price for products to be sold online than for products to be sold offline. Many national competition authorities have investigated cases of dual pricing in online sales and have been resolved by abandoning the provisions on dual display of prices in question. There are considerable risks for both companies and individuals who do not comply with competition law. Companies that break the rules risk: This article aims to (a) draw the line between legitimate joint offers and joint offers that are in fact anti-competitive joint sales, and (b) draw attention to injury theories other than joint sales in the area of joint tendering. The evaluation of eu competition law of the (…) Downstream agreements relating to minimum resale prices, setting prices below the seller`s costs or discriminating against buyers in a similar situation may, in certain circumstances, infringe competition law.
1. ec.europa.eu/competition/antitrust/legislation/guidelines_vertical_en.pdf Offered resale pricing programs where manufacturers provide recommended retail prices to distributors or print suggested retail prices on packaging may be legal. However, these programs can be risky and should be carefully reviewed in advance by a competition law advisor. There are two different categories of potential competition concerns: vertical activities (i.e. aspects of the supplier-customer relationship that have anti-competitive effects) and horizontal activities (i.e. anti-competitive behaviour between competitors, such as agreements between customers or suppliers). In addition to the competitive situation in markets where the commercial agent acts as an assistant to the other party, account must be taken of the specific market in which commercial agents offer their services for the negotiation or conclusion of transactions. An undertaking by the agent to work exclusively for a contracting entity for a certain period of time shall entail a restriction of the tender on that contract; the commitment by the other Party to appoint it only as a representative for a given territory results in a restriction of market demand.
However, the Commission considers that these restrictions are due to the specific obligation of the commercial agent and his principal to protect the interests of the other and therefore considers that they do not constitute a restriction of competition. The current VBER exempts dual distribution agreements – despite the fact that the supplier and independent distributors are technically competitive at the retail level. The Commission is concerned that this double distribution exception may exempt vertical agreements where possible horizontal concerns are no longer negligible. Although dual distribution itself is obviously not prohibited, the way in which a supplier which has set up a dual distribution system may, in practice, raise competition concerns, e.B. the extent to which the supplier exchanges competitively sensitive information (such as prices, customers or sales volumes) with distribution partners who are competitors at the end customer level. .
