Background

Economic theory of vertical restraints

Economic theory and competition law

Should distributors have more protection?

Vertical restraints put to the test of economic analysis

Structure of distribution law - Book plan

General bibliography

Introduction

Localizing the anticompetitive effects

Effect on trade between Member States

Scope ratione loci

Concept of an undertaking

Intra-group agreements

Scope ratione personae

Applicability of competition law to vertical agreements

Definition of the relevant market

Anticompetitive object or effect

Appreciability threshold

Concept of agreement and concerted practice

Prohibition of vertical restraints

Block exemptions

Individual exemptions and rule of reason

Exemption of vertical restraints

Control of vertical restraints

Prohibition

Exoneration

Restrictive agreements

Principle

Applications

Abuse of dominant position

Exclusive purchase/Exclusive supply

Resale outside network

International agreement

Exclusive distribution agreements

Manufacturer's guarantee

Protection of the brand

Protecting the network against third parties

Relations between the parties

Selective distribution

Hardcore restrictions

Individual exemptions

Rule of reason

Prohibition of restrictive agreements and individual exemptions

Distribution of new motor vehicles : Regulation No 330/2010

After-sales : Regulation No 461/2010

Block exemption

Motor vehicle distribution agreements

Merger control

Franchising

Commercial agency and competition

EU harmonization

International agency

Commercial agents

This book provides a wide-ranging review of the European rules relating to distribution: exclusive purchase and exclusive supply, exclusive and selective distribution, motor vehicle distribution, franchises, commercial agents.

European Distribution Law

The Treaty does not define the concept of undertaking. According to case law, an undertaking is characterized by its economic autonomy: an entity is an undertaking under Article 101 TFEU when it carries out an economic activity - offers goods or services on a given market - and operates independently . The marketing of products or services thus constitutes clear evidence of such activity . 
An und …

Concept of an undertaking.

The Treaty does not define the concept of undertaking. According to case law, an undertaking is characterized by its economic autonomy: an entity is an undertaking under Article 101 TFEU when it carries out an economic activity - offers goods or services on a given market - and operates independently . The marketing of products or services thus constitutes clear evidence of such activity . 

An undertaking can be a natural person, a legal person, a body governed by public law , a person governed by private law, a non-profit making establishment , or a grouping with no legal personality. The criterion by which an undertaking is defined is material not organic. No legal form is excluded in theory, only the non-economic nature of certain activities of a body can cause it to avoid the reach of competition law. The State, public bodies, local authorities are not undertakings within the meaning of competition law when they implement the powers exercised by a public authority . 

An authorized representative is an undertaking and is subject to the rules on anticompetitive agreements where he/she exercises an independent activity and does not form an economic unit with the principal . The financial and commercial risk assumed is the relevant criterion to distinguish the commercial agent, operating as an undertaking , from the mere representative . Motor-vehicle agents are thus considered to be intermediaries who form an economic unit with the supplier provided that they do not assume the financial risk of the sale, and in particular of the stocks .

According to the Court of Justice, "the concept of an undertaking encompasses every entity engaged in an economic activity, regardless of the legal status of the entity and the way in which it is financed": Case C-41/90 Höfner and Elser v Macrotron [1991] ECR I-1979, LawLex200400002917JBJ. Thus, a public employment placement office may be described as an undertaking within the meaning of Article 102 TFEU. 

In the absence of any economic activity, a person cannot, in his capacity as an associate or shareholder, be qualified as a company, Case C-189/02 P Streamserve v OHMI [2004] ECR I-1461, LawLex200600002415JBJ.

Case 118/85 Commission v Italy [1987] ECR 2599, LawLex200500003945JBJ.

According to the Court of Justice, the fact that the offer of goods and services is not for profit does not prevent the entity carrying out those operations on the market from being regarded as an undertaking if said offer is in competition with that from other profit-making operators, see Case C-222/04 Cassa di Risparmio di Firenze and others [2006] ECR I-289, LawLex200800000247JBJ.

Case C-364/92 SAT Fluggesellschaft v Eurocontrol [1994] ECR I-43, LawLex200400003665JBJ: the fact that a professional order is subject to the rules of public law does not remove it from the scope of application of the rules of competition.

See Case 40/73 Suiker Unie and others v Commission [1975] ECR 1663, LawLex200400002777JBJ; thus, relations between railway companies and travel agents fall within the scope of application of Article 101 TFEU (former Article 81 EC), Commission Decision No 92/568 of 25 November 1992, Distribution of railway tickets by travel agents, LawLex200400003674JBJ; also, Case 311/85 VVR v Sociale Dienst van de Plaatselijke en Gewestelijke Overheidsdiensten [1987] ECR 3801, LawLex200500003944JBJ; excluding the mere commercial representative - who forms an economic unit with his principal - the status being characterized by the lack of financial and commercial risk, Case 56/64 and 58/64 Consten v Commission EEC [1966] ECR 556, LawLex200400002598JBJ; Commission Decision No 88/84 of 22 December 1987, ARG/Unipart, LawLex200400003527JBJ: including when the agent is a legal person.

Guidelines on Vertical Restraints, OJ of 19 May 2010, C 130-01, at pts 13-17. 

See Commission Decision No 73/109 of 2 January 1973, European sugar industry, LawLex200400002383JBJ, intermediaries qualified as commercial representatives or commission agents are still subject to the EU competition rules where they are not bound by exclusivity and are able to behave independently; Case C-217/05 Confederación Española de Empresarios de Estaciones de Servicio [2006] ECR I-11987, LawLex200700000372JBJ: the autonomy of a service station operator in relation to its supplier means that the distributor assumes a significant proportion of financial and commercial risks of the sale of fuel. See also Guidelines on Vertical Restraints, OJ C 130/01 of 19 May 2010.

The motor-vehicle agent who does not assume the financial risk of sales and is subject to no obligation to hold stocks, forms an economic unit with the supplier and Article 101 TFEU is not applicable in their dealings, Case T-325/01 DaimlerChrysler v Commission [2005] ECR II-3319, LawLex200700000257JBJ. Compare C-266/93 Bundeskartellamt v Volkswagen and VAG Leasing [1995] ECR I-3477, LawLex200400003551JBJ: the representative of a manufacturer now operating independently in its own name a sale and after-sales service activity, is an independent agent; Commission Decision No 2002/758/EC of 10 October 2001, Mercedes-Benz, LawLex200400003553JBJ, (annulled by Case T-325/01, aforementioned), a motor vehicle agent assuming substantial risks directly associated with this business is an undertaking within the meaning of Article 101 TFEU.

European Distribution Law

19. Concept of an undertaking.

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

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

19. Concept of an undertaking.

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

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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