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

As well as dealing with anticompetitive agreements, Article 101 TFEU also specifically targets concerted practices although it does not define what they are.
The origin of the term “concerted practice” comes from the observation of like behavior on the market. By making the concept of concerted practice distinct from an agreement, the Treaty was able to prevent undertakings from circumventing Arti …

Concept

As well as dealing with anticompetitive agreements, Article 101 TFEU also specifically targets concerted practices although it does not define what they are.

The origin of the term “concerted practice” comes from the observation of like behavior on the market. By making the concept of concerted practice distinct from an agreement, the Treaty was able to prevent undertakings from circumventing Article [101(1)] by resorting to a form of anticompetitive coordination which could not be properly defined as an agreement , the objective being that all economic operators autonomously determine the policies they wish to pursue on the market.

Concerted practices are the result of the coming together of two constituent factors joined by a link of causality, i.e. a generating factor - coordination between the parties realized through contact between them, and an outcome - the cooperation resulting from the coordination and consisting in a modification of the normal conditions of the market . It is both necessary and sufficient that there be, “direct or indirect contact between such operators, the object or effect whereof is either to influence the conduct on the market of an actual or potential competitor or to disclose to such a competitor the course of conduct which they themselves have decided to adopt or contemplate adopting on the market” , which is not the same as adapting one's behavior to market conditions in an intelligent manner. A concerted practice is constituted where, “the parties have not agreed or decided in advance among themselves what each will do in the market but knowingly adopt or adhere to some collusive device which encourages or facilitates the coordination of their commercial behavior” .

A concerted action neither implies a conclusive or premeditated agreement nor necessarily the proof of parallel behavior . It must be distinguished from simple parallel behavior devoid of any element of concertation, even though it constitutes a strong indication thereof . In contrast to the more structured nature of an agreement, the concept of a concerted practice does not require the working out of a “plan” , but includes varied forms of “contact” made, - even mere conversations  or negotiations  - the anticompetitive purpose of which is sufficient to characterize the practice regardless of its concrete effects . The participation in the collusion implies no formal commitment to adopt any specific behavior. Incitement can be implied just from the submission of a complaint from another market operator .

Case 48/69 ICI v Commission [1972] ECR 619, LawLex200400003459JBJ.

See Case C-199/92 P Hüls v Commission [1999] ECR I-4287, LawLex200500003915JBJ.

See Case 100/80 Musique Diffusion française v Commission [1983] ECR 1825, LawLex200400003564JBJ.

See Case 40/73 Suiker Unie and others v Commission [1975] ECR 1663, LawLex200400002777JBJ.

See Case T-2/89, Petrofina v Commission [1991] ECR II-1087, LawLex200400002486JBJ.

Cases 29/83 and 30/83 CRAM v Commission [1984] ECR 1679, LawLex200500004021JBJ.

Especially if it leads to conditions of competition which do not correspond to the normal conditions of the market, having regard to the nature of the products, the size and number of the undertakings, and the volume of the said market: Case 48/69 ICI v Commission [1972] ECR 619, LawLex200400003459JBJ. - The parallelism of behavior establishes the concerted action when it is not the result of an intelligent adaptation to market conditions, but is the outcome of contact between the various operators having as its object to effect or influence the behavior of competitors or to reveal one's intended behavior to them: Commission Decision No 86/398 of 23 April 1986, Polypropylene, LawLex200500003987JBJ.

Case 40/73 Suiker Unie and others v Commission [1975] ECR 1663, LawLex200400002777JBJ.

Commission Decision No 86/398 of 23 April 1986, Polypropylene, LawLex200500003987JBJ.

Commission Decision No 84/405 of 6 August 1984, Zinc producer group, LawLex200500004388JBJ: conversations, negotiations and contacts made with the intention of influencing one of the competitor's export sales, or at least putting the other competitor in the picture about such sales so that he could modify his own market behavior accordingly, constitute a concerted practice.

European Distribution Law

36. Concept

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

36. Concept

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise