Exclusivity
Under an exclusivity clause is understood in Antitrust in the strict sense, any exclusive Delivery - or purchase obligation . In a broader sense, this includes all restrictions on action that the market dominant imposes on its business partners in legal transactions or through factual action.
to form
The manifestations of exclusivity are manifold. Primarily, of course, sole purchasing and supplying obligations are to be considered, in which the buyer / supplier is limited to one source or to one sales channel, i.e. the binding is the main subject of the contract. Contracts in which the existence of an exclusivity obligation cannot be recognized at first glance can also have the same effect: Long-term supply contracts, minimum purchase quantities that make up a large part of the actual requirement and special conditions ("loyalty discounts") all have the potential to foreclose the market ( see beer delivery contract ).
Antitrust assessment
When assessing exclusivity obligations under antitrust law , it should first be noted that these - in a market characterized by unrestricted competition - have quite positive effects: They "offer the supplier the advantage of a certain sales guarantee as the reseller due to his exclusive purchase obligation and his The non-compete obligation imposed on the company concentrated its sales efforts on the sale of the contract goods. The contracts also create a collaboration with the reseller, which enables the supplier to plan the sale of his goods during the term of the contract and to organize production and distribution efficiently ”.
Exclusive purchase and exclusive distribution agreements are exempt from the Vertical Block Exemption Regulation (PDF) depending on the market share of the parties involved. Enterprises with a market share higher than 30% conclude such contracts, then their assessment based on Art. 101 must be made depending on the circumstances. In the case of an exclusive obligation, due to the advantages mentioned above, the factuality of Art. 101 (PDF) TFEU or § 1 GWB must be denied. This does not apply if the drafting of the contract leads to a considerable foreclosure effect.
Something different occurs when one of the parties is dominant. In the hands of such a company, exclusivity agreements are a highly dangerous means for competition, with which one's own market power can be strengthened. Such agreements are therefore prohibited under Art. 102 TFEU as well as § 19 GWB and § 20 GWB.
Individual evidence
- ↑ Ulrich Immenga / Ernst-Joachim Mestmäcker, EU competition law , 5th edition, 2012, TFEU Art. 102 Rn. 214
- ↑ So ECJ, judgment of February 28, 1991 - case 234/89 - ECR 1991, I-935 marginal no. 11 f. - Delimitis / Henningerbräu.
- ↑ Christian Calliess / Matthias Ruffert, EUV / AEUV , 2016, Art. 101 Rn. 206 f.
- ↑ Ulrich Immenga / Ernst-Joachim Mestmäcker, competition law: GWB , 2012, § 1 Rn. 376.
- ↑ Manfred A. Dauses, EU Commercial Law , 2017, Art. 102 Rn. 81 ff.
