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

Vertical agreements, which have as their object the fixing of the general terms and conditions of sale, do not produce negative effects on competition if they preserve the freedom of the distributor and are not discriminatory. General terms and conditions should not limit the freedom of economic action of trading partners and prevent individual initiatives intended to attract more customers and to …

Conditions for prohibition

Vertical agreements, which have as their object the fixing of the general terms and conditions of sale, do not produce negative effects on competition if they preserve the freedom of the distributor and are not discriminatory. General terms and conditions should not limit the freedom of economic action of trading partners and prevent individual initiatives intended to attract more customers and to strengthen competition .

Manufacturers influencing the commercial policies of resellers, is tolerated when it is part of the normal functioning of a distribution network (franchises, selective distribution, exclusive distribution, exclusive purchase) but does not extend to permitting the imposition of a minimum price. Distributors must be free to set their prices with regard to their own costs . Thus, general terms and conditions which purport to prohibit retailers from setting their own prices are anticompetitive . Resale price maintenance clauses constitute restrictions which are excluded from exemption within the meaning of Regulation No 2022/720. The application of dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage is also prohibited by Article 101(1). Consequently, where conditions may differ according to buyer, the difference in treatment must not extend to a discriminatory allocation of discounts , impede parallel trade  or exclude a type of distribution system .

Lastly, terms and conditions of sale may, more specifically, not have the effect of isolating the market of each Member State and removing the prices applied in each of those markets from competition in one or several other Member States . A clause in the general terms and conditions of sale which purports to ban distributors from exporting the contractual products is anticompetitive by its object . Resale prohibitions are considered to be the same as unlawful indirect export bans .

Commission Decision No 78/59/EEC of 2 December 1977, Centraal Bureau voor de Rijwielhandel, LawLex200400002402JBJ, for a prohibition on improved equipment of bicycles and the restriction of guarantee terms to authorized retailers, members of an association which also included dealers and manufacturers; No 80/489/EEC of 17 April 1980, Krups, LawLex200500005311JBJ, clause obliging distributor to maintain adequate stocks found not to restrict competition.

The distributor must be able to pursue an autonomous commercial policy. See also for the imposition of a system of rebates and discounts, Commission Decision No 73/232/EEC of 3 July 1973, Gas water-heaters and bath-heaters, LawLex200400002384JBJ; No 82/506/EEC of 15 July 1982, SSI, LawLex200400003541JBJ.

Commission Decision No 77/66/EEC of 22 December 1976, GERO-Fabriek, LawLex200400003520JBJ. - See also No 73/322/EEC of 5 October 1973, Deutsche Philips GmbH, LawLex200500005285JBJ: retail price maintenance of products intended for export or to be re-imported into the national territory; No 74/431/EEC of 23 July 1974, Papiers peints de Belgique, LawLex200400003281JBJ: retailers prohibited from displaying lower prices or announcing price reductions by an association of manufacturers; Case 311/85, VVR v Sociale Dienst van de Plaatselijke en Gewestelijke Overheidsdiensten [1987] ECR 3801, LawLex200500003944JBJ.

Case 260/82 NSO v Commission [1985] ECR 3801, LawLex200400003540JBJ, discounts only to retailers achieving quite a high minimum turnover at the end of year; Commission Decision No 82/506/EEC of 15 July 1982, SSI, LawLex200400003541JBJ, additional discounts only granted to specialist stores.

Case T-168/01 GlaxoSmithKline Services v Commission [2006] II-2969, LawLex200700000304JBJ.

Commission Decision No 73/232/EEC of 3 July 1973, Gas water-heaters and bath-heaters, LawLex200400002384JBJ, agreement between importers and manufacturers which excludes department stores, cooperatives and channels of distribution channels through which participants can sell on their products.

Commission Decision No 70/332/EEC of 30 June 1970, Kodak (not available in English).

Commission Decision No 73/322/EEC of 5 October 1973, Deutsche Philips GmbH, LawLex200500005285JBJ; No 77/66/EEC of 22 December 1976, GERO-Fabriek, LawLex200400003520JBJ; No 82/203/EEC of 27 November 1981, Moët et Chandon (London) Ltd, LawLex200400002420JBJ; No 87/409/EEC of 13 July 1987, Sandoz, LawLex200400002441JBJ, which stipulates that prohibiting exports restricts competition by its very nature; No 90/38/EEC of 13 December 1989, Bayo-n-ox, LawLex200500005346JBJ; No 90/645/EEC of 28 November 1990, Bayer Dental, LawLex200500004567JBJ; No 2001/791/EC of 8 May 2001, Glaxo Wellcome (SA), Aseprofar et Fedifar, Spain Pharma, EAEPC, LawLex200400002669JBJ.

Commission Decision No 73/322/EEC of 5 October 1973, Deutsche Philips GmbH, LawLex200500005285JBJ; No 82/860/EEC of 10 December 1982, Cafeteros de Colombia, LawLex200500005318JBJ. See also Article 4 of Regulation No 2022/720, which prohibits the restriction on cross-supplies between distributors within a selective distribution system.

European Competition Law

106. Conditions for prohibition

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

106. Conditions for prohibition

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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