Distribution agreements often contain non-compete clauses. They impose restrictions on a distributor’s ability to manufacture or sell products competing with the products covered by the distribution agreement, the so-called contract products.
Over the past few years, a trend has been noticeable toward a commercial strategy combining agency and distribution models. In particular, depending on the products or customers involved, a business partner is sometimes requested by the same supplier to act as both its independent distributor and its commercial agent. Such business partners are often referred to as “dual role” agents.
In the previous DLC countdown, it was highlighted that EU competition law applies a particular definition of agency. Not every agent in the sense of commercial or business law will be treated as an agent for EU competition law purposes.
The particular nature of agency agreements triggers the application of a specific competition law regime. This regime is based on a split between (i) the role assumed by the agent acting as an intermediary of the principal (i.e. where he is trying to secure transactions for the principal) and (ii) the position of the agent as a provider of agency services to principals (i.e. where he seeks appointments as an agent).
Before diving into the individual restrictions of competition that typically appear in vertical agreements, it is useful to first focus on the main types of distribution systems. Such types include exclusive distribution, non-exclusive or free distribution, selective distribution, franchising and agency. Suppliers can opt for a single system that covers the entire EEA, but may also combine distribution systems. This is for instance the case where a supplier applies non-exclusive distribution in certain parts of the EEA and selective distribution in other parts.
No business wants to run the risk that its distribution, agency or supply agreements (also known as “vertical agreements”) are found to be unlawful and invalid. Even worse, no business wants to be trapped by a competition authority and pay fines or be sued by its clients for private damages because of such unlawfulness. Compliance with competition law is key and the only sensible way forward.
Musat & Asociatii advised Ecolab, a global leader in water, hygiene and infection prevention solutions and services, on the Romanian law aspects of its strategic acquisition of Purolite Corporation, involving around 30 jurisdictions over six continents. The acquisition was structured as a cash transaction and valued at approximately USD 3.7 billion.