On 5 February 2021, DG Competition published a 9-page working document setting out its preliminary views on how Article 101 TFEU can be applied to a particular type of vertical agreement, namely agency contracts with distributors already in the (…) This list is not exhaustive. However, if the agent bears one or more of the above risks or costs, the agreement between the agent and the client will not be considered an agency contract. The question of risk must be assessed on a case-by-case basis and taking into account the economic reality of the situation and not the legal form. For practical reasons, the risk analysis can begin with the assessment of the risks specific to the contract. If the agent encounters risks specific to the contract, this is sufficient to conclude that he is an independent distributor. On the contrary, if the agent does not take contract-specific risks, it is necessary to continue the analysis by assessing the risks associated with market-specific investments. Finally, if the agent does not take contract-specific risks and risks related to market-specific investments, it may be necessary to take into account the risks associated with other required activities in the same product market. © European Commission 16. There are three types of financial or commercial risks that are essential to the definition of a genuine agency contract, namely (i) contract-specific risks that are directly related to contracts that the agent has entered into and/or negotiated on behalf of the principal, such as.B.

the financing of actions; (ii) market-specific investment risks, which are investments specifically necessary for the type of activity for which the agent has been appointed by the contracting entity; and (iii) risks related to other activities carried out in the same product market, to the extent that the procuring entity requires the contractor to carry out those activities not as a representative on behalf of the procuring entity but at its own risk. [19] [1] Commission Notice on Exclusive Agency Contracts with Commercial Agents, OJ 1962, p. 2921. 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. 18. As noted in point 16(g) of the VBER Guidelines, a genuine agency contract is not in itself incompatible with the fact that the agent also acts as an independent distributor on the same product market, provided that the contracting entity reimburses in full the activities which it contractually obliges the agent to carry out. This example applies to scenarios where the distributor`s main activity is the distribution of agency products on behalf of a principal, while the distributor must independently carry out other limited activities. According to the working document and on the basis of the experience gained to date by DG Competition, in all other cases of agents performing a dual function, the agency contract can only fall within the scope of Article 101(1) TFEU if (i) the distributor is effectively free to conclude the agency contract (i.e.

this is not imposed de facto by the trader by (ii) all relevant risks related to the sale of goods, within the meaning of the agency contract, the contracting entity shall bear its liability to third parties, provided that those activities and risks can be effectively defined so as not to affect the risks and incentives associated with the distribution of services that the agent distributes independently on its own behalf. The three types of material at financial or commercial risk for the definition of a commercial agency contract in accordance with paragraph 15 of the VBER Guidelines should be taken into account. Investments that are generally common for the Agency`s activities are not relevant to this assessment. This includes costs, such as renting a store or employee salaries, which can in principle be considered as general investments in premises or staff, provided that they can also be used for the sale of various goods that have nothing to do with the agency contract. 22. According to the working document, DG Competition currently considers that the only market-specific investments that the contracting entity would not have to cover are those which relate exclusively to the sale of differentiated products on the same product market, which are not covered by the agency contract and are marketed independently. . . .