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Global Enforcement Priorities in Vertical Agreements

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Global Enforcement Priorities in Vertical Agreements Global enforcement priorities in vertical agreements DLAPIPER.COM GLOBAL ENFORCEMENT PRIORITIES IN VERTICAL AGREEMENTS Contents Introduction .......................................................................................................................................................................................... 3 Global enforcement priorities – vertical restraints ....................................................................................................................... 4 Vertical agreements in major jurisdictions ..................................................................................................................................... 5 Austria..................................................................................................................................................................................................... 6 Belgium .................................................................................................................................................................................................. 8 Canada..................................................................................................................................................................................................10 EU ..........................................................................................................................................................................................................13 France ...................................................................................................................................................................................................15 Finland ..................................................................................................................................................................................................18 Germany ..............................................................................................................................................................................................20 Hungary................................................................................................................................................................................................23 Israel .....................................................................................................................................................................................................25 Italy ........................................................................................................................................................................................................28 Netherlands .........................................................................................................................................................................................31 Norway .................................................................................................................................................................................................34 Poland ...................................................................................................................................................................................................36 Portugal ................................................................................................................................................................................................39 Romania ...............................................................................................................................................................................................42 Russia ....................................................................................................................................................................................................45 Slovakia .................................................................................................................................................................................................48 South Africa .........................................................................................................................................................................................51 Spain .....................................................................................................................................................................................................53 Sweden .................................................................................................................................................................................................55 Switzerland ..........................................................................................................................................................................................57 Ukraine .................................................................................................................................................................................................61 United Kingdom .................................................................................................................................................................................64 US ..........................................................................................................................................................................................................66 China .....................................................................................................................................................................................................69 Japan .....................................................................................................................................................................................................72 Key contacts ........................................................................................................................................................................................74 2 DLAPIPER.COM Introduction Vertical restraints refer to restrictions of competition competition in vertical agreements. Some restrictions, in agreements or contract terms between firms however, are almost always prohibited, and almost that operate at different levels of the supply chain, everywhere, such as resale price maintenance, which is for example an agreement for the supply of goods verticalized price fixing. In the US, where markets are between a manufacturer and a retailer or distributor, well-integrated nationwide, resale price maintenance or an agreement for the supply of services. The vertical has long been the more or less most prominent per agreement can relate to final goods bought for resale, se restriction (but policy has relaxed in recent years). or for input products that the buyer processes into In the European Union, competition law protects the a final product for sale. Restrictions of competition consumer not only by watching over supra-competitive in vertical agreements are generally considered less pricing, but also through the creation of a Single Market harmful to competition than horizontal anticompetitive without internal boundaries, in the hope that the price agreements between competitors such as cartels, levels in different Member States may converge. This market allocation schemes or legitimate forms of translates into hostility as to territorial restrictions with collaboration between otherwise competing companies. the EU/EEA, which are generally prohibited per se and only allowed under fairly narrow circumstances. With the Vertical agreements are widespread, since few suppliers rapidly advancing digitalization of the economy, novel creating products or services sell directly to the end- concerns have emerged such as the possibly “collusive” user. Most use wholesalers, distributors and retailers, effect of price-adjusting algorithms, or the use of MFN and distribution systems may be two-tiered, three- clauses by different forms of online platforms. tiered or more, depending on the industry concerned. Suppliers use different forms of distribution systems, In the 2005-2015 decade, enforcement interest was low, such as exclusive distribution (one buyer by territory), at least in Europe. This has changed with the European selective distribution (a network of authorized retailers), Commission’s E-commerce Sector Inquiry (2015-2017), franchising, agency, and others. In addition to the a massive information gathering exercise that laid traditional brick-and mortar distribution systems, on-line the ground for a number of investigations targeting commerce has developed over the last decades, and individual companies. At national level, competition there are mixed as well as pure online players. Some authorities are active as well. online players not only buy and resell products on their platform but also offer their platform as a marketplace, The numerous recent cases clearly signal that vertical allowing a supplier to sell his products in a secured way restrictions, in particular where they relate to the to end users; in those cases the marketplace does not “new economy”, are back on the radar. So there is a acquire title to the product but acts as an intermediary. need to be mindful about how products are marketed. There are several “theories of harm” relating to Note: This Guide, which covers a number of important competition
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