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

Even if the criteria and methods are the same, defining the relevant market is not as important in the law on restrictive agreements as it is for the rules on dominant position : the fact that the restrictive agreement exists implies that the participants intend to organize or consolidate their monopoly power. Furthermore, in the context of a behavioral rule such as Article 101 TFEU, an anticompetitive practice may, solely in respect of its object, be caught by the prohibition. It will therefore be unlawful without any need to first define the relevant market . This is the case for obvious restrictions of competition such as market-sharing or the control of outlets . Apart from those scenarios, the definition of the market is a prerequisite for the assessment of the economic power of an agreement, which is directly related to the market share held by its participants. Thus, the definition of the relevant market is particularly significant regarding vertical restraints since vertical agreements benefit from a presumption of legality where the market shares of the supplier and of the buyer are less than 30% . 

In all events, the fact that there are different market definitions possible does not prevent the finding of an unlawful agreement when the participants in the concerted behavior hold a strong or very strong position on each of those markets . Similarly, market segmentation is unnecessary when the restriction remains appreciable regardless of the definitions adopted .

The General Court reviews the concept of market concerned: Case T-7/93 Langnese-Iglo v Commission [1995] ECR II-1533, LawLex200400003648JBJ; Case T-9/93 Schöller v Commission [1995] ECR II-1611, LawLex200400003649JBJ, which states that an error in the definition of the relevant market is not likely to lead to an annulment of the Commission's decision when it has no impact on the assessment of the restriction of competition.

See Case T-25/95 Cimenteries CBR (SA) v Commission [2000] ECR II-491, LawLex200400003586JBJ; Case T-62/98 Volkswagen v Commission [2000] ECR II-2707, LawLex200400003580JBJ. See also See Commission Decision No 2002/758 of 10 October 2001, Mercedes-Benz, LawLex200400003553JBJ; No 2002/759 of 5 December 2001, Luxembourg Brewers, LawLex200400003555JBJ.

See Case T-374/94 European Night Services and others v Commission [1998] ECR II-3141, LawLex200400002947JBJ.

Guidelines on Vertical Restraints of 2022, at pt 120 et seq. The market position of the parties provides an indication of the degree of market power they possess. Market share and possible competitive advantages are also used to assess the market position of competitors: pts 282 and 283.

Case T-5/00 DEP Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission [2003] ECR II-5761, LawLex200500004837JBJ.

Commission Decision No 2002/758 of 10 October 2001, Mercedes-Benz, LawLex200400003553JBJ.

Necessity

22. Necessity