1. IDI Annual Congress June 2010
Jaap van Till
De Lairessestraat 131 – 135
1070 AS Amsterdam
The Netherlands
Tel.:
Fax:
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2. COMMISSION’S NOTICE OF 24 DECEMBER 1962
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3. PITTSBURGH CORNING EUROPE [1972] OJ L272/35
Economic reality of a commercial relationship is decisive, not the designation given to that relationship by the parties
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4. SUIKER UNIE V. COMMISSION
Judgment of the European Court of Justice
of 16 December 1975 (ECR 1663)
Undertakings acting as agents for each other, and also as principals on their own account, are independent traders to whom Art. 81 (now Art. 101) applies
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5. FLEMISH TRAVEL AGENTS
[1987] Case 311/85, ECR 3801
Prohibiting independent travel agents to pass commissions on to customers and thereby cutting prices is incompatible with Art. 81 (1) [now Art. 101 (1)]
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6. BUNDESKARTELLAMT V. VOLKSWAGEN (1995)
Opinion of Advocate General Tesauro
“…….a search for universal parameters capable of providing a general answer to all agency contracts is doomed to fail.”
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7. COURT OF FIRST INSTANCE [2006], ECR I – 11987
DaimlerChrysler
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8. SPANISH PETROL STATIONS, , PRELIMINARY RULINGS IN 2006 (CASE C-217/05) AND 2008 (CASE C-279/06)
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9. COMMISSION’S APPROACH IN THE 2000 GUIDELINES AND THE 2010 GUIDELINES
Commercial Agency Contracts are identified by the amount of risk assumed by the agent.
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10. GUIDELINES 2000
Non-exhaustive list of risks:
risks related to the contracts concluded and/or negotiated by the agent (e.g. financing of stocks)
Risks related to market-specific investments (e.g. showrooms)
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11. GUIDELINES 2010
One additional third kind of risks:
risks related to other activities undertaken in the same product market, to the extent that the principal requires the agent to undertake such activities, but not as an agent on behalf of the principal but for its own risk
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12. GUIDELINES 2000
If one or more of the risks or costs are incurred, Art. 101 (1) may apply
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13. GUIDELINES 2010
Where one or more of the risks or costs are incurred, the agreement will not be qualified as a commercial agency contract
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14. WHERE DOES THAT LEAVE US?
No flexibility !
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15. COMMISSION’S NOTICE OF DECEMBER 2001 ON AGREEMENTS OF MINOR IMPORTANCE
15% relevant market-share for Vertical Agreements
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16. COMMISSION’S NOTICE OF 2004 WITH GUIDELINES ON “THE EFFECT ON TRADE CONCEPT” CONTAINED IN ART. 101
- Aggregate market-share of the parties on any relevant market ≤ 5%
- Aggregate community turonver of the supplier in the products ≤ 40 million
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17. LARGE NUMBER OF COMMERCIAL AGENCY CONTRACTS CAN BE REMOVED FROM THE SCOPE OF ART. 101 (1) WHEN TAKING THE TWO RELEVANT COMMISSION’S NOTICES INTO CONSIDERATION
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18. GUIDELINES 2010, §49
Where an agency agreement falls within Art. 101 (1), an obligation preventing or restricting the agent from sharing his commission, fixed or variable, with the customer would be a hardcore restriction under Art. 4 (a) of the Block Exemption Regulation
The agent should thus be left free to lower the effective price paid by the customer without reducing the income for the principal
08/06/10

19. COMMERCIAL AGENCY CONTRACTS UNABLE TO BENEFIT FROM THE NOTICES OF 2001 AND 2004
Review existing contract and/or draft new contracts with due observance of the Guidelines 2010 and the decision of the Court of First Instance in the Daimler Chrysler Case
08/06/10

20. LET’S MEET AGAIN IN 2022 UPON THE EXPIRY OF REGULATION 330/210 AND SEE IF THE COMMERCIAL AGENCY TRADE CONCEPT STILL EXISTS!
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