European Competition Law provides a wide-ranging review of the European rules relating to competition: restrictive agreements, abuse of a dominant position, impact of intellectual property rights, procedure, merger control, State aid.

European Competition Law

According to the Court of Justice, agents are not undertakings within the meaning of Article 101(1), unless their actions are fully independent . A motor vehicle agent who bears substantial commercial risks linked to its function is an independent intermediary and is subject to the EU competition rules  like the operator of a service station who is autonomous of its supplier where it assumes a sig …

Representation and subcontracting agreements

According to the Court of Justice, agents are not undertakings within the meaning of Article 101(1), unless their actions are fully independent . A motor vehicle agent who bears substantial commercial risks linked to its function is an independent intermediary and is subject to the EU competition rules  like the operator of a service station who is autonomous of its supplier where it assumes a significant proportion of the financial and commercial risks of the sale of fuel . Likewise, an intermediary who, at the same time as distributing for the account of the principal, undertakes a very considerable amount of business for their own account on the product or service market at issue, does not form an economic unity with its principal . On the other hand, the agent forms a unit with his principal when he does not bear the risks associated with failures to deliver or defective  deliveries or the insolvency of customers, does not finance the stocks and does not make any specific investments, even though he incurs certain incidental negligible and limited expenses . Dual representation by an agent is not enough to call into question the economic unit formed with one of the principals, insofar as he does not personally engage in substantial transactions on the market concerned as an independent trader . 

The Commission, in its Vertical Restraints Guidelines , declares Article 101(1) not to be applicable to agency agreements under which the agent is vested with the power to negotiate and/or conclude contracts on behalf of another person (the principal), either in the agent's own name or in the name of the principal, on condition that the agent does not bear the financial or commercial risks, is not the owner of the contract goods and does not supply any of the contract services itself. If contract-specific risks are incurred by the agent, it will be enough to conclude that the agent is an independent distributor . The Guidelines set out a list of criteria which must be taken into account in determining that the agent bears no financial or commercial risk . The inclusion of certain terms in the contract will be an indication of the agent's dependence: limitations on the territory in which the agent may sell these goods or services, the customers to whom he may sell the goods or services , fixing the prices and conditions at which the agent must sell or purchase these goods or services. However, even if the principal bears all the risks, the agreements may still facilitate collusion, inter alia when a number of principals use the same agents while collectively excluding others from using these agents, or when they use the agents to collude on marketing strategy or to exchange sensitive market information .     

Unlike independent middlemen, trade representatives have an auxiliary function and do not act as true operators on the product market concerned: they therefore cannot be classed as undertakings within the meaning of Article 101(1) TFEU . Similarly, agency agreements  do not fall under Article 101(1) as agents are not, in principal, undertakings under that provision and the operator of a service station is only autonomous of its supplier if it assumes a significant proportion of the financial and commercial risks of the sale of fuel, ownership of the goods, a contribution to the costs linked to their distribution, their safe-keeping, liability for any damage caused to the goods or by the goods to third parties, and the making of investments specific to the sale of those goods .

The Commission also considers Article 101(1) to be inapplicable to subcontracting agreements where the subcontractor “is not an independent supplier in the market” . This is especially so where the performance of the subcontracting agreement involves the use by the subcontractor of industrial property rights, technical knowledge or manufacturing processes owned by the contractor. However, insofar as the subcontractor is in principle an independent undertaking, only the provisions justified by the relationship of dependency existing between the subcontractor and the contractor are able to escape the prohibition.

Commission Decision No 73/109 of 2 Janury 1973, European sugar industry, LawLex200400002383JBJ, intermediaries described as commercial agents or commission agents remain subject to the EU competition rules where they are not bound by any exclusive arrangement and are able to behave independently; upheld in Case 40/73 Coöperatieve Vereniging "Suiker Unie" UA, 16 December 1975, LawLex200400002777JBJ; Case 311/85 VVR v Sociale Dienst van de Plaatselijke en Gewestelijke Overheidsdiensten [1987] ECR 3801, LawLex200500003944JBJ; Case T-325/01 DaimlerChrysler v Commission [2005] ECR II-3319, LawLex200700000257JBJ.

Commission Decision No 2002/758 of 10 Oct. 2001, Mercedes-Benz, LawLex200400003553JBJ, annulled by Case T-325/01 Daimler Chrysler AG v Commission [2005] ECR II-3319, LawLex200700000257JBJ, on the grounds that the Commission exaggerated the extent of the risk borne by the agents.

Guidelines on Vertical Restraints, at pt 20.

Commission Notice 2010/C 130/01, Guidelines on Vertical Restraints OJ of 19 May 2010.

Case C-217/05 Confederación Española de Empresarios de Estaciones de Servicio [2006] ECR I-11987 LawLex200700000372JBJ.

Commission Notice of 18 December 1978 concerning its assessment of certain subcontracting agreements, OJ C 1 of 3 January 1979, 2; Commission Notice No EC 2010/C 130/01, of 19 May 2010, Guidelines on Vertical Restraints at pt 22.

Case C-217/05 Confederación Española de Empresarios de Estaciones de Servicio [2006] ECR I-11987 LawLex200700000372JBJ. See also Case C-279/06 CEPSA Estaciones de Servicio SA v. LV Tobare Hijos SL [2008] ECRI-6681, LawLex200900000073JBJ.

Case 40/73 Coöperatieve Vereniging "Suiker Unie" UA, 16 December 1975, LawLex200400002777JBJ; Case  T-66/99 Minoan Lines, Judgment of 11 December 2003, LawLex200500004802JBJ.

Case T-418/10 Voestalpine AG, Judgment of 15 July 2015, not available in English.

Case T-418/10 Voestalpine AG, cited above.

Guidelines on Vertical Restraints, 2010/C 130/01, at pt 12 et seq.

Guidelines on Vertical Restraints, at pt 17.

Such is the case where the agent: a) does not contribute to the costs relating to the supply/purchase of the contract goods or services, including the costs of transporting the goods. This does not preclude the agent from carrying out the transport service, provided that the costs are covered by the principal; b) does not maintain at its own cost or risk stocks of the contract goods, including the costs of financing the stocks and the costs of loss of stocks and can return unsold goods to the principal without charge, unless the agent is liable for fault (for example, by failing to comply with reasonable security measures to avoid loss of stocks); c) does not undertake responsibility towards third parties for damage caused by the product sold (product liability), unless, as agent, it is liable for fault in this respect; d) does not take responsibility for customers' non- performance of the contract, with the exception of the loss of the agent's commission, unless the agent is liable for fault (for example, by failing to comply with reasonable security or anti-theft measures or failing to comply with reasonable measures to report theft to the principal or police or to communicate to the principal all necessary information available to him on the customer's financial reliability); e) is not, directly or indirectly, obliged to invest in sales promotion, such as contributions to the advertising budgets of the principal; f) does not make market-specific investments in equipment, premises or training of personnel, such as for example the petrol storage tank in the case of petrol retailing or specific software to sell insurance policies in case of insurance agents, unless these costs are fully reimbursed by the principal; g) does not undertake other activities within the same product market required by the principal, unless these activities are fully reimbursed by the principal.

Guidelines on Vertical Restraints, at pt 18.

European Competition Law

63. Representation and subcontracting agreements

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Sous parties

Les notions juridiques connexes

63. Representation and subcontracting agreements

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Sous parties

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise