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Vertical Agreements the Regulation of Distribution Practices in 37 Jurisdictions Worldwide 2012 Contributing Editor: Stephen Kinsella OBE

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Vertical Agreements the Regulation of Distribution Practices in 37 Jurisdictions Worldwide 2012 Contributing Editor: Stephen Kinsella OBE ® GCRGLOBAL COMPETITION REVIEW Vertical Agreements The regulation of distribution practices in 37 jurisdictions worldwide 2012 Contributing editor: Stephen Kinsella OBE Published by Getting the Deal Through in association with: Accura Advokatpartnerselskab Allende & Brea Altius Asters Bán, S Szabó & Partners Blake, Cassels & Graydon LLP Cortázar Urdaneta & Cía – Abogados Çukur & Yılmaz Law Firm De Berti Jacchia Franchini Forlani Dinova Rusev & Partners Law Office Franco Caiado Guerreiro & Associados Glade Michel Wirtz Golfinopoulos Law Office Homburger Jáuregui y Navarrete SC J Sagar Associates King & Wood Mallesons Kneppelhout & Korthals Korman & Oren Law Firm Glimstedt Lee & Ko Matheson Ormsby Prentice Momo-o, Matsuo & Namba Motieka & Audzevicius Office for the Protection of Competition Peli Filip SCA Pellegrini & Urrutia Salans Europe LLP, organizacˇná zložka Sidley Austin LLP Uría Menéndez Vella Pugliese Buosi Guidoni – Advogados Vivien & Associés Wolf Theiss CONTENTS ® Vertical Argentina Julián Peña Allende & Brea 3 Agreements 2012 Australia Wayne Leach and Sharon Henrick King & Wood Mallesons 10 Contributing editor Austria Guenter Bauer and Robert Wagner Wolf Theiss 17 Stephen Kinsella OBE Sidley Austin LLP Belgium Carmen Verdonck and Jenna Auwerx Altius 25 Business development managers Brazil Priscila Brolio Gonçalves and Ana Carolina Cabana Zoricic Alan Lee George Ingledew Vella Pugliese Buosi Guidoni – Advogados 34 Robyn Hetherington Dan White Bulgaria Milen Rusev Dinova Rusev & Partners Law Office 42 Marketing managers Canada Jason Gudofsky, Micah Wood and Joshua Krane Blake, Cassels & Graydon LLP 49 Ellie Notley Alice Hazard Chile Julio Pellegrini and Pedro Rencoret Pellegrini & Urrutia 57 Marketing assistants China Chen Yang and Lei Li Sidley Austin LLP 64 William Bentley Zosia Demkowicz Colombia Javier Cortázar-Mora Cortázar Urdaneta & Cía – Abogados 72 Admin assistant Megan Friedman Czech Republic Michael Mikulík and Michal Petr Office for the Protection of Competition 79 Marketing manager (subscriptions) Denmark Christina Heiberg-Grevy and Malene Gry-Jensen Accura Advokatpartnerselskab 87 Rachel Nurse Subscriptions@ Estonia Triin Tuulik and Marko Tiiman Law Firm Glimstedt 94 GettingTheDealThrough.com European Union Stephen Kinsella OBE, Stephen Spinks, Patrick Harrison, Rosanna Connolly Sidley Austin LLP 102 Assistant editor Adam Myers France Muriel Perrier Vivien & Associés 114 Editorial assistant Lydia Gerges Germany Markus M Wirtz and Silke Möller Glade Michel Wirtz 121 Senior production editor Greece Christos Golfinopoulos Golfinopoulos Law Office 130 Jonathan Cowie Chief subeditor Hungary Chrysta Bán Bán, S Szabó & Partners 138 Jonathan Allen India Amit Kapur, Farhad Sorabjee and Amitabh Kumar J Sagar Associates 145 Subeditor Joanne Morley Ireland Helen Kelly and Bonnie Costelloe Matheson Ormsby Prentice 153 Editor-in-chief Israel William B Korman and Nachum Oren Korman & Oren 161 Callum Campbell Italy Fabio Ferraro and Andrew G Paton De Berti Jacchia Franchini Forlani 171 Publisher Richard Davey Japan Nobuaki Mukai Momo-o, Matsuo & Namba 182 Vertical Agreements 2012 Korea Sung Man Kim Lee & Ko 190 Published by Law Business Research Ltd Lithuania Emil Radzihovsky, Giedrius Kolesnikovas and Ramu¯nas Audzevicˇius 87 Lancaster Road Motieka & Audzevicius 197 London, W11 1QQ, UK Tel: +44 20 7908 1188 Mexico David Hurtado Badiola and Manuel Iglesias Aguilera Jáuregui y Navarrete SC 207 Fax: +44 20 7229 6910 © Law Business Research Ltd 2012 Netherlands Esther Glerum-Van Aalst, Marleen de Putter and Andre Reznitchenko No photocopying: copyright licences do not apply. Kneppelhout & Korthals 216 ISSN 1753-9250 Portugal Joana Gomes dos Santos Franco Caiado Guerreiro & Associados 222 The information provided in this Romania Carmen Peli and Manuela Lupeanu Peli Filip SCA 229 publication is general and may not apply in a specific situation. Legal advice should always be sought before taking any legal Serbia Guenter Bauer, Beba Mileti´c and Maja Stankovi´c Wolf Theiss 238 action based on the information provided. This information is not intended to Slovakia Katarína Pecnová Salans Europe LLP, organizacˇná zložka 246 create, nor does receipt of it constitute, a lawyer–client relationship. The publishers and authors accept no responsibility for Spain Edurne Navarro Varona and Luis Moscoso del Prado Uría Menéndez 253 any acts or omissions contained herein. Although the information provided is Switzerland Franz Hoffet, Marcel Dietrich, Gerald Brei and Andrea Eugster Homburger 261 accurate as of March 2012, be advised that this is a developing area. Turkey Özlem Kurt Çukur & Yılmaz Law Firm 269 Printed and distributed by Ukraine Igor Svechkar and Tetiana Vovk Asters 276 Encompass Print Solutions Tel: 0844 2480 112 United Kingdom Stephen Kinsella OBE, David Went, Patrick Harrison, Rosanna Connolly Sidley Austin LLP 284 Law United States Joel Mitnick Sidley Austin LLP 296 Business Research CHINA Sidley Austin LLP China Chen Yang and Lei Li Sidley Austin LLP Antitrust law It is unclear whether the Anti-Monopoly Law will replace the pertinent provisions in prior legislation such as the Anti-Unfair 1 What are the legal sources that set out the antitrust law applicable to Competition Law and the Price Law or will coexist with them. vertical restraints? However, if any conflict occurs between the terms of the Anti- Monopoly Law and prior laws, the Anti-Monopoly Law (as the more China’s main competition legislation is the Anti-Monopoly Law of recent text) should in principle prevail. For the sake of completeness, the People’s Republic of China (PRC) (2007), which entered into and given that the competition authorities have not at this stage force on 1 August 2008. issued sufficient relevant guidance on the Anti-Monopoly Law, in the Vertical restraints are classed as a type of ‘monopolistic conduct’ remainder of this chapter we assume that the provisions in other laws under the Anti-Monopoly Law, and the two enforcement agencies continue to apply. having power in relation to monopolistic conduct, the State Where a party occupies a dominant market position on one Administration for Industry and Commerce (SAIC) and the National of the markets to which the vertical agreement relates, articles Development and Reform Commission (NDRC), issued agency rules 17 to 19 of the Anti-Monopoly Law may also be relevant to the in 2009 and 2010, which are directly applicable to vertical restraints. antitrust assessment of a given vertical restraint. The SAIC has also These agency rules include: promulgated an agency rule to implement these articles in the Anti- • SAIC Rules on Procedures of Administrations for Industry and Monopoly Law. However, these provisions are considered in Getting Commerce for Investigation of Monopoly Agreement and Abuse the Deal Through – Dominance and are therefore not covered here. of Market Dominance Cases, promulgated on 26 May 2009 and A similar approach is taken in relation to the provisions in the Price effective on 1 July 2009; Law and its implementing measures, which may apply only to • NDRC Rules against Pricing-related Monopolies, promulgated companies in a dominant market position and so are not considered on 29 December 2010 and effective on 1 February 2011; in detail in this chapter. • NDRC Rules on Administrative Enforcement Procedures for Pricing-related Monopolies, promulgated on 29 December 2010 and effective on 1 February 2011; and Types of vertical restraint • SAIC Rules of Administrations for Industry and Commerce on Prohibition of Monopoly Agreement Acts, promulgated on 31 2 List and describe the types of vertical restraints that are subject December 2010 and effective on 1 February 2011. to antitrust law. Is the concept of vertical restraint defined in the antitrust law? In addition to the Anti-Monopoly Law, certain other laws and The Anti-Monopoly Law does not define the concept of vertical regulations also have provisions regulating vertical restraints, restraint. Nonetheless, while the concept of ‘vertical’ is not further including notably: explained, the Anti-Monopoly Law contains the concept of • Anti-Unfair Competition Law of the PRC (1993); ‘horizontal’ agreement (ie, an agreement between competitors). By • Price Law of the PRC (1997); implication, a ‘vertical’ agreement would be any agreement between • Contract Law of the PRC (1999) as amended; trading partners other than horizontal agreements. Similarly, while • Administrative Measures for Fair Transactions Between Retailers the Anti-Monopoly Law does not define the concept of ‘restraint’, and Suppliers (2006) (Administrative Measures); guidance is provided in the definition of ‘monopoly agreement’, • Provisional Measures for the Prohibition against Monopolistic being an agreement, decision or concerted practice that eliminates Pricing (2003) (Anti-Monopolistic Pricing Measures); or restricts competition. • Regulation on the Prevention of Below-Cost Dumping Conduct (1999); • Judicial Interpretation of the Law Applied to Disputes Arising Legal objective from Technology Contracts (2004); • Regulation on the Administration of Import and Export of 3 Is the only objective pursued by the law on vertical restraints Technologies (2001); and economic, or does it also seek to promote or protect other interests? • Provisions on the Prohibition of Regional Blockades in Market Economy Activities (2001). The Anti-Monopoly Law pursues multiple objectives: • to prevent and prohibit monopolistic conduct; There are also rules implementing the Anti-Unfair
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