21. According to point 15 of the VBER Guidelines, market-specific investments which must be covered by the contracting entity in order for the agency contract to be regarded as genuine must be distinguished from investments relating to the provision of agency services in general, which must not be covered by the contracting entity. However, certain investments may be necessary partly for the provision of agency services in general and partly specifically for the type of activity for which the authentic representative has been appointed by the contracting entity. This is the case, for example, with investments in a website or general advertising for a store and not for the customer`s brand or certain products. DG Competition proposes that, for this type of investment, the amount of capital should cover part of the costs that may be (at least partially) market-specific. The FTC enforces federal antitrust laws and focuses on segments of the economy where consumer spending is high, including healthcare, drugs, food, energy, technology, and everything related to digital communications. Factors that could trigger an FTC investigation include pre-merger notification filings, certain consumer or business correspondence, congressional investigations, or articles on consumer or economic topics. 19. Where an undertaking plays a dual role of independent representative and distributor for the same supplier, the definition of market-specific investments is of particular importance. Where a supplier concludes a commercial agency contract with independent distributors already operating on the relevant market, it is likely that many of the relevant costs have already been incurred, which raises the question whether and to what extent the contracting entity should bear those costs.
Market-specific investments are defined in point 16 of the Vertical Guidelines as `investments specifically necessary for the type of activity for which the contractor has been designated by the contracting entity, i.e. necessary to enable the agent to conclude and/or negotiate such a contract. These investments are usually swallowed up, which means that after leaving that particular field of activity, the investment cannot be used or sold for other activities, except for a significant loss. `In accordance with point 14 of the Guidelines on the Block Exemption Regulation, where an undertaking acts in a dual role as genuine representative and independent distributor for the same supplier on a downstream market, market-specific investments should be understood as including all investments necessary for an agent to negotiate or conclude contracts on the relevant market, including sunk investments: which would be lost if the agent ceased all activities on the relevant market (i.e. B say as an independent agent or distributor). This includes, for example, investments in the establishment of a store or in the training of sales staff who are specifically necessary for the sale of products on the relevant market and who cannot be used commercially for activities in other product markets or only with a significant loss. Article 101(1) of the Treaty on the Functioning of the European Union (`TFEU`) prohibits agreements between undertakings which significantly restrict competition. In accordance with Article 101(3) TFEU, the Block Exemption Regulation provides a safe haven against antitrust attacks for vertical agreements (i.e. agreements between undertakings operating at different levels of the vertical supply chain) which fulfil certain conditions. The VBER considers that the pro-competitive effects and the improvement of the effectiveness of these agreements outweigh the risk of anti-competitive harm. The VBER is a valuable tool to ensure legal certainty for companies.
In order to benefit from the Safe Harbour, vertical agreements must not contain “hardcore restrictions” and the market share of either party may not exceed 30%. In addition, the VBER identifies certain restrictions (e.B. Non-compete obligations with a duration of more than five years) that are not covered by the Safe Harbour, even if the rest of the agreement is subject to reservations. At 24. In addition, DG Competition proposes that, when setting the lump sum or fixed percentage, the contracting entity should ensure that the amount reflects the differences in costs between genuine agents operating in different Member States or between genuine agents operating under different business models (e.B agents operating only one physical undertaking, agents, which operate only online without being an online platform), is adequately reflected. hybrid agents operating in both directions). In particular, DG Competition is currently of the opinion that where the relevant costs are reimbursed as a percentage of the price of the product sold under the agency contract, the contracting entity should also take into account the fact that the authentic agent can make relevant market-specific investments, even if he does not make sales for a certain period of time. Such a reimbursement system should therefore include a method of calculating and reimbursing those costs in the event that the agent does not make any sales, even if only for a short period.
6. The exemption follows the function, but not the name of the relationship. In the Cepsa I judgment, the ECJ held that if a party defined as a distributor and party to a distribution agreement does not in fact bear an economic risk in the light of its function as a distributor (as was the case for those petrol dealers in Spain), the relationship between the principal and the distributor is considered to be identical to that between a representative and his trader for reasons of competition. [8] This logic may also make it possible to classify certain so-called limited liability distributors, as used in many intra-group distribution models (including with a third-party distributor outside the customer`s group), as commercial agents for competitive purposes if the limited risk can be reconciled with the requirements for finding genuine representation. 15. The working document clarifies that, in accordance with paragraphs 12 to 21 of the VBER Guidelines, they continue to contain instructions on the factors defining genuine agency contracts for the purposes of Article 101(1) TFEU for the purpose of qualifying a relationship under competition law. .