English clause
As English clause referred to agreements in the context of exclusive platforms that require the buyer to report any better offer and allowing him only to take when the binding provider does not enter the Third to the lower rate.
One possible formulation of an English clause is as follows:
“The buyer undertakes towards his supplier to purchase goods of the type covered by the contract from third parties only if he has informed the supplier of the existence of a third-party offer and the latter refuses a delivery under the contractual conditions agreed with the third party. If, on the other hand, the supplier accepts the conditions offered by the third party, the buyer is obliged to purchase the goods from him. "
Such a clause may at first glance appear "fair" and suitable for eliminating the accusation of abuse of a dominant market position through reference ties, the opposite is often the case. The binding supplier would be informed about the offers of the competition with a formulation like the one above. This has the same effect as an identifying market information system : the secret competition is lifted. The fact that a company must always expect that any “secret” discounts will become known to the competition immediately, which in turn can react immediately and punish the competitor with a price war, the overall incentive to reduce prices is inhibited. Although it is argued that it is customary in competition to notify one's contractual partners about the offers of the competition, so the clause does not create any additional transparency, the EU Commission does not address this.
Individual evidence
- ↑ Guidelines on Vertical Restraints (PDF) para. 129.
- ^ Dallmann, WRP 2006, 347.
- ↑ See ECJ judgment of February 13, 1979 - Slg. 1979, 461, 544 f. - Hoffmann / La Roche.
- ↑ See Gleiss / Hirsch, EG-Kartellrecht. 4th edition. Art. 85 para. 371.
