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AGENT OR DISTRIBUTOR?
A COMPETITION LAW PERSPECTIVE
ANDRZEJ KMIECIK
Partner, Van Bael & Bellis, Brussels
Advanced Agency & Distribution 2008
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OUTLINE OF PRESENTATION
The advantages of selling through a genuine agent.
The conditions to qualify as a genuine agent:
are the conditions clear?
The consequences of not qualifying as a genuine agent: are there
alternative means of controlling prices/customers (unilateral
action?)
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THE ADVANTAGES OF SELLING THROUGH A
GENUINE AGENT
Genuine agency provides a partial escape from Article 81 EC for
suppliers.
The Reason : Article 81(1) EC prohibits agreements between
independent undertakings, whereas a genuine agent is
considered to be part of the same undertaking as its principal
(see Suiker Unie, 480 and 539; DaimlerChrysler, 86;
CEEES/CEPSA, 43).
Therefore, the obligations imposed on a genuine agent in relation
to the sale of the principals goods or services fall outside Article
81(1) EC (see Vertical Guidelines, 13).
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THE ADVANTAGES OF SELLING THROUGH A
GENUINE AGENT (2)
This leads to two main advantages for suppliers:
(1) Price control: imposition of minimum/fixed prices (hard-core
restriction under VABER) is allowed.
(2) Customer control: prohibition of passive sales into other
territories/customers groups (hard-core restriction under VABER)
is allowed.
Caveat: Even in the case of genuine agents, Article 81(1) EC may
apply to any restrictions concerning the relationship between
the agent and the principal (e.g. exclusive agency, non-
compete obligations)(see CEEES/CEPSA, 62; Vertical
Guidelines, 19).
However, even exclusivity and non competes may be exempted
by the VABER.
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THE CONDITIONS TO QUALIFY AS A GENUINE AGENT
Test: Genuine agents must not bear the financial and
commercial risks linked to the sale of goods (or the provision of
services) on behalf of the principal to third parties
(CEEES/CEPSA, 43-44; also DaimlerChrysler, 87).
Two types of risks : (i) linked to sale of product and (ii) market-
specific investments.
Is this always the only condition to be met for an agent to qualify
as a genuine agent? The recent case law suggests so, although
some exceptions may remain.
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THE CONDITIONS TO QUALIFY AS A GENUINE AGENT:
Risks linked to the sale of the goods
(i) Does the agent assume risks linked to the sale of goods?
Based on the case law and the Vertical Guidelines, the agent is
liable to be considered to assume risk if, in particular:
The agent has ownership of the goods prior to their sale to
customers (i.e., the agent is the seller).
The agent has to pay the principal before, or regardless of
whether, he receives payment from a customer (i.e. payment
risk or other risk of non-performance by the customer).
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THE CONDITIONS TO QUALIFY AS A GENUINE AGENT :
Risks linked to the sale of the goods (2)
The agent has to hold stocks and/or demonstration goods at his
expense.
The agent has to bear transport or other costs of supply.
The agent has to assume liability for damage caused to the
goods (loss or deterioration) and for damage caused by the
goods to third parties, regardless of whether the agent is at fault.
The agent has to carry out repair services for products under
guarantee for which he is not adequately remunerated by the
principal.
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THE CONDITIONS TO QUALIFY AS A GENUINE AGENT :
Risks in the form of market-specific investments
(ii) Does the agent assume risks by making market-specific
investments, i.e., investments required to enable the agent to
carry out the type of activity for which he is appointed by the
principal?
Generalinvestments (e.g. in premises, personnel) are not
considered relevant risks (Vertical Guidelines, 15) as any
business needs to make these to operate. How to distinguish
generalfrom specificinvestments?
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THE CONDITIONS TO QUALIFY AS A GENUINE AGENT :
Risks in the form of market-specific investments (2)
The agent will assume risk if he has to invest in premises or
equipment specific to the market (e.g. fuel tank for a service
station).
The agent will assume risk if he has to invest in advertising
specific to the market (e.g. the principal does not carry out
advertising for its products and leaves it to the agent).
Arguably, an agent using investments (e.g. in infrastructure)
previously made for selling competing goods could be deemed
to assume market-specific risks in relation to the goods of a
subsequent principal.
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THE CONDITIONS TO QUALIFY AS A GENUINE AGENT :
Non-risks
Caveat: the qualification of an agency relationship as genuine will
not be prejudiced by either:
(a) Permitting the agent to grant rebates to customers at the
expense of the agents commission; or
(b) (Arguably) the obligation imposed by the principal on the
agent to assume risks on another market, such as the obligation
to provide after-sales services (DaimlerChrysler, 113; contrary
to this, Vertical Guidelines, 16).
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HOW CLEAR ARE THE CONDITIONS OF GENUINE AGENCY?
Extent of the Risk
An overall economic assessment of whether the agent bears risk
should be made no exhaustive list of factors.
It appears that the test should be applied rather strictly.
Negligiblefinancial and commercial risks will not be a bar to
genuine ageny (CEEES/CEPSA, 61; AG Kokott in Spanish
petrol stations, 63 and 64; DaimlerChrysler, 112).
But one non-negligible risk may be enough to prevent a genuine
agency relationship (CEPSA/LV Tobar e Hijos).
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HOW CLEAR ARE THE CONDITIONS OF GENUINE AGENCY?
Daimler Chrysler Example
The more the principal protects its agents from the specific risks
linked to the market, the more likely its agents will be regarded as
genuine agents.
However, in DaimlerChrysler the CFI concluded that there was a
genuine agency relationship despite the appearance that agents
partly assumed certain risks (transport costs, demonstration
vehicles, repairs under guarantee, after-sales services, stock of
spare parts).
DaimlerChrysler at least indicates that the burden of proof is on
the competition authority/court to prove that the agent does
actually bear appreciable risk. (The Vertical Guidelines can be
read too narrowly.)
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HOW CLEAR ARE THE CONDITIONS OF GENUINE AGENCY?
Is Risk the Only Relevant Factor?
Apparently contrary to previous case-law (Vlaamse Reisbureaus),
a genuine agent can act for several principals (see,
CEEES/CEPSA 62 (a contrario) and Vertical Guidelines, 13).
If the only test for determining whether an agent is a genuine
agent is whether the agent bears risks in relation to the sale of
goods on behalf of the principal, a genuine agent would be able
to act as an independent dealer on other markets.
In favour : AG Kokott in her opinion in CEEES/CEPSA, 44; the CFI
in DaimlerChrysler, 113
Against ? : the ECJ judgments in Suiker Unie and VAG Leasing
(concern over ambivalent relationships).
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HOW CLEAR ARE THE CONDITIONS OF GENUINE AGENCY?
Practical Concerns for Principals
As the principal must assume the risks in order to create a
genuine agency relationship, the principal must either (i) bear
directly the costs itself (e.g. investments in infrastructure and
advertising, stocking, transport, etc), or (ii) reimburse the agent
for such costs.
Question: if the principal chooses (ii), can it cap the agents
expenditure that will be reimbursed? Answer: presumably yes,
provided that this amount is reasonably sufficient to carry out the
business (analogy to employee).
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HOW CLEAR ARE THE CONDITIONS OF GENUINE AGENCY?
Practical Concerns for Principals (2)
Related question: Can/should the principal prohibit the agent
from unilaterally deciding to take (further) risks in relation to the
sale of goods on behalf of the principal (e.g. additional
investments in infrastructure and/or advertising) in order to
ensure the agent remains genuine?
Answer unclear. Arguably:
- the principal is not required to do so (see DaimlerChrysler in
relation to the granting of rebates out of the agents commission).
- the principal is allowed to do so in relation to the sale of goods
on his behalf (although it could amount to an indirect non-
compete?).
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EXAMPLE: a genuine agent
A manufacturer of video game products (principal) uses
wholesalers (agents) to supply retailers accross Europe.
The principal appoints one agent per country.
The principal (1) prohibits agents to sell outside the country
where they are established and (2) fixes minimum prices.
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EXAMPLE: a genuine agent
Principal Agent
Ownership until sale to retailers X
Conclusion of contracts with retailers X
Financing of stocks X
Payment risk (agent does not pay until retailer pays) X
Rebates (out of agents commission) X
Repair services under guarantee (labour at agreed rate) X
Several principals X
After-sales services X
Premises and employment X
Technical training & equipment X
Advertising at national level (further advertising allowed) X
Conclusion: wholesalers are arguably genuine agents for the sale of video games for the
principal
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ALTERNATIVE MEANS OF CONTROLLING
PRICES/CUSTOMERS
In the case of a non-genuine agency relationship:
(1) the principal loses control over the effective price charged to
customers by the agent; and
(2) any customer/territorial restrictions must comply with the
VABER.
Truly unilateral action is not caught by Article 81(1) EC (see
Bayer Adalat).
Can a principal - as seller - rely on the theory of unilateral action
and limit supplies in order to control the prices/customers of a
non-genuine agent?
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ALTERNATIVE MEANS OF CONTROLLING
PRICES/CUSTOMERS
Scenario: the principal refuses orders for anti-competitive
reasons (e.g. prices too low, orders from territories/customers
not assigned to the agent), without communicating his (anti-
competitive) reasons to the agent. Afterwards, the agent
understands the reasons behind the principals refusals and
stops submitting such orders.
Risk: anti-competitive tacit agreement or concerted practice.
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CONCLUSION
There are significant advantages in terms of price/customer
control for a principal having a genuine agent, which cannot be
achieved otherwise.
It appears that (normally at least) the only relevant criterion for
the assessment is whether the agent assumes appreciable risks
linked to the sale of goods on behalf of the principal.
It appears that an agent may be genuine even if it acts for several
principals and/or also acts as an independent dealer (but beware
of ambivalent relationships).
However, there is not yet a consistent body of judgments and
decisions applying these criteria in practice.
Therefore, a number of practical questions remain unclear (e.g.
what is negligiblerisk?).

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