Click here to download the Vertical agreements 2019 report, published by Getting the Deal Through.

Jurisdictions covered

The following 26 jurisdictions are covered in this report:

Argentina; Australia; Austria; Brazil; Canada; China; European Union; France; Germany; India; Indonesia; Ireland; Japan; Macedonia; Malaysia; Mozambique; Netherlands; Philippines; Russia; Serbia; South Africa; Spain; Sweden; Switzerland; Thailand; Turkey; Ukraine; United Kingdom; United States.

Questions

The set of questions relating to the topic of Vertical agreements and answered by the guide for each jurisdiction covered include:

Antitrust law

• • What are the legal sources that set out the antitrust law applicable to vertical restraints?

Types of vertical restraint

• • List and describe the types of vertical restraints that are subject to antitrust law. Is the concept of vertical restraint defined in the antitrust law?

Legal objective

• • Is the only objective pursued by the law on vertical restraints economic, or does it also seek to promote or protect other interests?

Responsible authorities

• • Which authority is responsible for enforcing prohibitions on anticompetitive vertical restraints? Where there are multiple responsible authorities, how are cases allocated? Do governments or ministers have a role?

Jurisdiction

• • What is the test for determining whether a vertical restraint will be subject to antitrust law in your jurisdiction? Has the law in your jurisdiction regarding vertical restraints been applied extraterritorially? Has it been applied in a pure internet context and if so, what factors were deemed relevant when considering jurisdiction?

Agreements concluded by public authorities

• • To what extent does antitrust law apply to vertical restraints in agreements concluded by public entities?

Sector-specific rules

• • Do particular laws or regulations apply to the assessment of vertical restraints in specific sectors of industry (motor cars, insurance, etc)? Please identify the rules and the sectors they cover.

General exceptions

• • Are there any general exceptions from antitrust law for certain types of agreement containing vertical restraints? If so, please describe.

Agreements

• • Is there a definition of “agreement” (or its equivalent) in the antitrust law of your jurisdiction?
• • In order to engage the antitrust law in relation to vertical restraints, is it necessary for there to be a formal written agreement or can the relevant rules be engaged by an informal or unwritten understanding?

Parent and related-company agreements

• • In what circumstances do the vertical restraints rules apply to agreements between a parent company and a related company (or between related companies of the same parent company)?

Agent-principal agreements

• • In what circumstances does antitrust law on vertical restraints apply to agent-principal agreements in which an undertaking agrees to perform certain services on a supplier’s behalf for a sales-based commission payment?
• • Where antitrust rules do not apply (or apply differently) to agent-principal relationships, is there guidance (or are there recent authority decisions) on what constitutes an agent-principal relationship for these purposes?

Intellectual property rights

• • Is antitrust law applied differently when the agreement containing the vertical restraint also contains provisions granting intellectual property rights (IPRs)?

Analytical framework for assessment

• • Explain the analytical framework that applies when assessing vertical restraints under antitrust law.
• • To what extent are supplier market shares relevant when assessing the legality of individual restraints? Are the market positions and conduct of other suppliers relevant? Is it relevant whether certain types of restriction are widely used by suppliers in the market?
• • To what extent are buyer market shares relevant when assessing the legality of individual restraints? Are the market positions and conduct of other buyers relevant? Is it relevant whether certain types of restriction are widely used by buyers in the market?

Block exemption and safe harbour

• • Is there a block exemption or safe harbour that provides certainty to companies as to the legality of vertical restraints under certain conditions? If so, please explain how this block exemption or safe harbour functions.

Types of restraint

• • How is restricting the buyer’s ability to determine its resale price assessed under antitrust law?
• • Have the authorities considered in their decisions or guidelines resale price maintenance restrictions that apply for a limited period to the launch of a new product or brand, or to a specific promotion or sales campaign; or specifically to prevent a retailer using a brand as a “loss leader”?
• • Have decisions or guidelines relating to resale price maintenance addressed the possible links between such conduct and other forms of restraint?
• • Have decisions or guidelines relating to resale price maintenance addressed the efficiencies that can arguably arise out of such restrictions?
• • Explain how a buyer agreeing to set its retail price for supplier A’s products by reference to its retail price for supplier B’s equivalent products is assessed.
• • Explain how a supplier warranting to the buyer that it will supply the contract products on the terms applied to the supplier’s most-favoured customer, or that it will not supply the contract products on more favourable terms to other buyers, is assessed.
• • Explain how a supplier agreeing to sell a product via internet platform A at the same price as it sells the product via internet platform B is assessed.
• • Explain how a supplier preventing a buyer from advertising its products for sale below a certain price (but allowing that buyer subsequently to offer discounts to its customers) is assessed.
• • Explain how a buyer’s warranting to the supplier that it will purchase the contract products on terms applied to the buyer’s most favoured supplier, or that it will not purchase the contract products on more favourable terms from other suppliers, is assessed.
• • How is restricting the territory into which a buyer may resell contract products assessed? In what circumstances may a supplier require a buyer of its products not to resell the products in certain territories?
• • Have decisions or guidance on vertical restraints dealt in any way with restrictions on the territory into which a buyer selling via the internet may resell contract products?
• • Explain how restricting the customers to whom a buyer may resell contract products is assessed. In what circumstances may a supplier require a buyer not to resell products to certain resellers or end consumers?
• • How is restricting the uses to which a buyer puts the contract products assessed?
• • How is restricting the buyer’s ability to generate or effect sales via the internet assessed?
• • Have decisions or guidelines on vertical restraints dealt in any way with the differential treatment of different types of internet sales channel? In particular, have there been any developments in relation to “platform bans”?
• • Briefly explain how agreements establishing “selective” distribution systems are assessed. Must the criteria for selection be published?
• • Are selective distribution systems more likely to be lawful where they relate to certain types of product? If so, which types of product and why?
• • In selective distribution systems, what kinds of restrictions on internet sales by approved distributors are permitted and in what circumstances? To what extent must internet sales criteria mirror offline sales criteria?
• • Has the authority taken any decisions in relation to actions by suppliers to enforce the terms of selective distribution agreements where such actions are aimed at preventing sales by unauthorised buyers or sales by authorised buyers in an unauthorised manner?
• • Does the relevant authority take into account the possible cumulative restrictive effects of multiple selective distribution systems operating in the same market?
• • Has the authority taken decisions (or is there guidance) concerning distribution arrangements that combine selective distribution with restrictions on the territory into which approved buyers may resell the contract products?
• • How is restricting the buyer’s ability to obtain the supplier’s products from alternative sources assessed?
• • How is restricting the buyer's ability to sell non-competing products that the supplier deems “inappropriate” assessed?
• • Explain how restricting the buyer’s ability to stock products competing with those supplied by the supplier under the agreement is assessed.
• • How is requiring the buyer to purchase from the supplier a certain amount or minimum percentage of the contract products or a full range of the supplier’s products assessed?
• • Explain how restricting the supplier’s ability to supply to other buyers is assessed.
• • Explain how restricting the supplier’s ability to sell directly to end consumers is assessed.
• • Have guidelines or agency decisions in your jurisdiction dealt with the antitrust assessment of restrictions on suppliers other than those covered above? If so, what were the restrictions in question and how were they assessed?

Notifying agreements

• • Outline any formal procedure for notifying agreements containing vertical restraints to the authority responsible for antitrust enforcement.

Authority guidance

• • If there is no formal procedure for notification, is it possible to obtain guidance from the authority responsible for antitrust enforcement or a declaratory judgment from a court as to the assessment of a particular agreement in certain circumstances?

Complaints procedure for private parties

• • Is there a procedure whereby private parties can complain to the authority responsible for antitrust enforcement about alleged unlawful vertical restraints?

Enforcement

• • How frequently is antitrust law applied to vertical restraints by the authority responsible for antitrust enforcement? What are the main enforcement priorities regarding vertical restraints?
• • What are the consequences of an infringement of antitrust law for the validity or enforceability of a contract containing prohibited vertical restraints?
• • May the authority responsible for antitrust enforcement directly impose penalties or must it petition another entity? What sanctions and remedies can the authorities impose? What notable sanctions or remedies have been imposed? Can any trends be identified in this regard?

Investigative powers of the authority

• • What investigative powers does the authority responsible for antitrust enforcement have when enforcing the prohibition of vertical restraints?

Private enforcement

• • To what extent is private enforcement possible? Can non-parties to agreements containing vertical restraints obtain declaratory judgments or injunctions and bring damages claims? Can the parties to agreements themselves bring damages claims? What remedies are available? How long should a company expect a private enforcement action to take?

Other issues

• • Is there any unique point relating to the assessment of vertical restraints in your jurisdiction that is not covered above?