Competition Challenges in the Retail Sector 16 July 2015

Transcription

1 0 Competition Challenges in the Retail Sector 16 July 2015 Robert Bell Paula Levitan Carol Osborne

2 1 Speakers Robert Bell is head of the EU & UK competition team at Bryan Cave with over 20 years of experience advising on complex competition and regulatory matters involving some of the leading cases before The Office of Fair Trading (OFT), the European Commission and UK and European Courts. He advises clients on a range of competition law issues including merger control, cartels, restrictive practices, competition litigation and public procurement law. Bell has a particular sector specialism in advising international technology and media clients on the application of competition law and new media, telecommunications regulation, and on competition litigation. He is currently Chair of the City of London Law Society's Competition Law Committee, which liaises with the UK Government and the EU & UK competition regulators in connection with the reform of competition law and practice. Bell is recognised as one of London s leading lawyers by The Legal 500 UK 2013 and Chambers UK Contact: robert.bell@bryancave.com 1

3 2 Speakers. Paula Levitan is a dual-qualified lawyer in the US and UK who has twenty-five years of experience managing the international legal affairs of public and private retail and consumer product companies, and handling the legal aspects of private equity investment activities in the sector. She acts for numerous retailers (national and international) as well as product manufacturers, particularly in the luxury goods sector. She also has substantial experience in the US and Japan. Levitan s established career history within the retail industry means that she is frequently called upon by clients to advise as an outside general counsel. Her retail and consumer goods practice encompasses domestic and cross-border mergers and acquisitions (M&A), joint ventures, franchising, licensing, distribution, commercial agreements, corporate governance, intellectual property, real estate, brand protection and financing. Contact: paula.levitan@bryancave.com 2

4 3 Speakers. Carol Osborne is a dual-qualified lawyer in the UK and the US who has twenty-five years of experience advising private and public companies on complex corporate legal issues, including cross-border mergers and acquisitions (M&A), high value commercial agreements, and strategic business matters. She has sector expertise working with manufacturers, retailers and private equity investors in the retail/consumer products arena and is co-leader of the Retail Team in London. Osborne has particular expertise assisting retailers and brand owners in the luxury goods space with whom she has been working since Osborne s many years of experience as outside general counsel to a number of public and private companies enables her to effectively counsel retail clients boards of directors and special board committees on corporate governance, significant corporate transactions and fiduciary issues. In addition to her role as co-leader of the Retail Team in London, Osborne was appointed Managing Partner of the firm s London office in July Contact: carol.osborne@bryancave.com 3

5 4 Agenda 1. The Basics EU Competition Law 2. The Importance of Compliance 3. Distribution Strategies 4. Agency 5. Pricing Issues 6. Internet Selling 7. Grey market goods 4

6 5 1. The Basics EU Competition Law Article 101(1) TFEU prohibits agreements whose object or effect is the prevention, distortion or restriction of competition and which appreciably affects competition and trade between Member States Agreements/concerted practices Restrictions by object or effect Must appreciably affect competition and trade between member states Article 102 TFEU prohibits anti-competitive behaviour by companies in a dominant position, which appreciably affects trade and competition between Member States 5

7 6 The Basics Cont Article 101(3) individual exemption The Vertical Agreements Block Exemption Regulation 2010 (some vertical restraints lawful but only where neither party has 30%+ market share). 6

8 7 The Basics Cont Domestic Competition Law Member States have their own competition laws modelled on the EU laws This national law applies where the competitive effect of the arrangement is purely domestic Relevant Authorities The EU Commission is primarily responsible for enforcing EU competition law Member States competition authorities enforce domestic competition law but also enforce EU competition law in association with the EU Commission 7

9 8 2. The Importance of Compliance Agreements found invalid Regulatory fines Private and collective damages actions Possible criminal sanctions Bad publicity

10 3. Distribution Strategies for Brand Owners 9

11 10 3. Distribution Strategies for Brand Owners Corporate models EU subsidiaries Wholesale Agents Internet sales Independent distributor models Exclusive or non-exclusive distribution Selective distribution Franchising

12 11 Distribution Strategies Competition Issues Exclusive or non-exclusive distribution Selective distribution Franchising Agents

13 4. Agency 12

14 13 The EU Commercial Agents Directive Agents are governed under EC Directive 86/653 (in the UK, this was implemented into law by the Commercial Agents (Council Directive) Regulations 1993) The label of someone as either an agent or distributor in contract does not determine their legal status under EU law Setting the price of the products agents only and therefore legally not-independent of the principal Extra-territorial reach of the Regulations - (Ingmar GB Ltd v Eaton Leonard Technologies Inc (C-381/98) Termination payments agents only (in English law) The amount of remuneration of the Agent can be agreed between the parties, but in the absence of agreement, the agent shall be entitled to remuneration on the compensation basis. If the agreement so provides, compensation may be on an indemnity basis which is limited to one year s commission under Article 17(4) of the 1993 Regulations. Compensation is preferential for the agent, it s not capped at a max amount and allows for payments for bringing in new customers and increasing the principal s business with existing customers. The EU Directive allows a choice between the compensation and indemnity models (though the UK has allowed both) Mandatory notice periods for termination agents only (in English law) The period of notice is at least one month for the first year of the contract, two months for the second year of the contract and three months for the third and subsequent years. Any attempted waiver of this right will be void.

15 5. Pricing Issues 14

16 15 Pricing Issues Resale Prices In the UK, price fixing is a serious infringement of Chapter I of the Competition Act 1998 Maximum prices can be set as long as they do not operate as fixed price levels; minimum pricing is prohibited Recommended prices are acceptable as long as no direct or indirect enforcement action or inducement is undertaken by the brand owner/supplier Brand owners/suppliers cannot provide assurances or suggest that by charging the recommended retail price a retailer will not be out of step with other retailers Brand owners/suppliers may not link any bonus or other suggested rebates to adoption of recommended resale prices Information Exchange with peer brand owners/retailers Should only focus on historic pricing and aggregated information Brand owners should not discuss or inquire about a competitor s pricing strategy. If raised by other retailers, talk about branding strategy and market perception

17 6. Internet Selling 16

18 17 Internet Selling Introduction Problem Areas Geo-blocking and re-routing Having links to appropriate national sellers is fine, refusing to serve a customer from another territory or banning resellers from doing so is not. Banning third party marketplaces? Differential pricing - (fixed bonuses to support either online or offline sales are permitted but they must not favour offline selling) Limiting the amount of online sales, however, you can specify a minimum sold offline Product Regulation - Distance selling regulations and EU product safety regulations

19 7. Grey Market Goods 18

20 19 Grey Market Goods This area has proved a difficult balancing act for regulators. The conflict is between the protection of intellectual property rights vs. the free movement of goods and cross-border price competition. Exhaustion of rights - Sebago Inc v GB-Unic SA [1999] A trademark owner can prevent EEA sales of goods when those goods were sourced from outside the EEA - Joined Cases C-414/99, C-415/99 and C- 416/99, Zino Davidoff SA v A & G Imports Ltd and Levi Strauss & Co/Levi Strauss (UK) Ltd v Tesco Stores, Tesco plc and Costco Wholesale UK Ltd

21 eu-competitionlaw.com 20

22 21 CPD Points CPD points and CLE credit are available for this webinar. CPD points and CLE credit may be collected by ing:

23 22 This presentation was prepared by Bryan Cave exclusively for the benefit of the persons attending the presentation and any other persons to whom material used in the presentation is distributed by Bryan Cave. The material used in relation to the presentation and any non-public information conveyed during the presentation is confidential and no part of that material or information may be disclosed or provided to any third party without the prior written permission of Bryan Cave. #290399