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 transfer of substantial know-how is specific to franchise agreements. Where it is necessary for the implementation of the agreements and the maintenance of the common identity and reputation of the franchise, it justifies a non-compete obligation for the whole duration of the contract . Such a clause protects investments made by the franchisor in order to develop the know-how, which, once tran …

Non-compete obligation

The transfer of substantial know-how is specific to franchise agreements. Where it is necessary for the implementation of the agreements and the maintenance of the common identity and reputation of the franchise, it justifies a non-compete obligation for the whole duration of the contract . Such a clause protects investments made by the franchisor in order to develop the know-how, which, once transferred, cannot be taken back: it is necessary to give the franchisor the means to prevent the know-how, which is the result of its investments, from being used by its competitors . 

After the termination of the agreement, a post-contractual non-compete clause may be imposed on the franchisee. Regulation No 2022/720 defines post-contractual non-compete clauses as “any direct or indirect obligation causing the buyer, after termination of the agreement, not to manufacture, purchase, sell or resell goods or services” . The validity of the post-contractual non-compete clause is recognized where it is indispensable to protect know-how transferred by the supplier to the buyer, provided that its duration is limited to one year after termination of the agreement and that it is limited to the premises or land from which the distributor has operated during the contract period . Furthermore the obligation for the franchisee not to disclose know-how to third parties as long as the know-how is not in the public domain is generally considered necessary for the protection of the intellectual property rights of the franchisor and, if its falls foul of Article 101(1) TFEU, to be covered by the Vertical Restraints Regulation .

Guidelines on Vertical Restraints, pt 166.

Guidelines on Vertical Restraints of 2022, pts 87 and 166. 

Reg. No 2022/720 of 10 May 2022, Art. 5(1)(b).

Regulation No 2022/720 of 10 May 2022, Art. 5(3) - On this last condition, see Case C-117-12 La Retoucherie de Manuela SL, Judgment of 7 February 2013, LawLex not available in English.

Guidelines on Vertical Restraints, pt 87.

European Distribution Law

98. Non-compete obligation

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Les notions juridiques connexes

98. Non-compete obligation

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

Les notions juridiques connexes

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