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 restrictions most commonly found in automobile distribution networks, as the case law demonstrates, concern prices and parallel imports.
Merely concluding a motor vehicle dealership agreement which complies with the competition rules is not enough, per se, to show that the dealer tacitly accepted the manufacturer's unlawful future policies. Accordingly, for an anticompetitive agreement on pric …

Restrictive clauses

The restrictions most commonly found in automobile distribution networks, as the case law demonstrates, concern prices and parallel imports.

Merely concluding a motor vehicle dealership agreement which complies with the competition rules is not enough, per se, to show that the dealer tacitly accepted the manufacturer's unlawful future policies. Accordingly, for an anticompetitive agreement on prices between the manufacturer and the distributors to exist, it must be established that the distributors expressly accepted the manufacturer's terms and its directives were effectively implemented .

According to the Court of Justice, any policy whose object is to provide distributors with an absolute territorial protection by partitioning markets constitutes an unlawful agreement and is excluded from exemption . An unlawful prohibition from exporting may be general and direct  or result from indirect measures such as setting up a system of bonuses and exerting pressure , specific financial conditions or requirements that the order should include an application for registration on the national territory . Likewise, a policy of imposing supply quotas on dealers combined with a bonus system intended to induce them to sell at least 85% of available vehicles within their contract territory was held unlawful . More generally, all techniques by which a motor vehicle manufacturer tries to partition the markets, such as prohibiting resellers from advertising outside their exclusive area  or offering for sale vehicles with specifications other than the ones usually offered on their territory, are prohibited . 

On the other hand, it cannot be deduced from the fact that there are no cross-supplies between distributors that such cross-supplies are prohibited whereas the contract provisions do not prohibit them and circulars sent to distributors only criticize sales to non-authorized resellers .

Case T-208/01 Volkswagen v Commission [2008] ECR II-5141, LawLex200500004803JBJ.

Case C-338/00 P Volkswagen v Commission [2003] ECR I-9189, LawLex200500003861JBJ: restrictions on parallel imports and exports are excluded from exemption regardless of whether they are direct or indirect. See also Case 25/75 Van Vliet Kwastenfabriek v Dalle Grode [1975] ECR 1103, LawLex200400002773JBJ; Commission Decisions No 78/155 of 23 December 1977, BMW Belgium NV and Belgian BMW dealers, LawLex200400002396JBJ; No 80/1333 of 11 December 1980, Hennessy-Henkell, LawLex200500004077JBJ.

Case 32/78 BMW Belgium v Commission [1979] ECR 2435, LawLex200500004092JBJ, approving Commission Decision No 78/155 of 23 December 1977, BMW Belgium NV and Belgian BMW dealers, LawLex200400002396JBJ. - See also Commission Decision No 2001/146 of 20 September 2000, Opel, LawLex200500004721JBJ: limiting supplies to orders intended for the dealer's territory constitutes practice of market partitioning. 

Case T-368/00 General Motors Nederland and Opel Nederland v Commission [2003] ECR II-4491, LawLex200500004833JBJ; Commission Decision No 2006/431 of 5 October 2005, SEP and Others/ Peugeot SA, LawLex200700000252JBJ; Case T-450/05 Peugeot and Peugeot Nederland v Commission [2009] ECR II-2533, LawLex201000001159JBJ.

Case T-450/05 Peugeot and Peugeot Nederland v Commission [2009] ECR II-2533, LawLex201000001159JBJ.

Case T-62/98 Volkswagen v Commission [2000] ECR II-2707, LawLex200400003580JBJ, confirmed in Case C-338/00 P Volkswagen v Commission [2003] ECR I-9189, LawLex200500003861JBJ.

Commission Decision No 75/73 of 13 December 1974, Bayerische Motoren Werke AG, LawLex200700001839JBJ.

Commission Decision No 86/506 of 25 September 1986, Peugeot, LawLex200500004434JBJ.

Case T-185/96 Riviera Auto Service v Commission [1999] ECR II-93, LawLex200500005251JBJ.

European Distribution Law

81. Restrictive clauses

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

81. Restrictive clauses

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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