Effective Distribution Strategies in the EU 24 February Robert Bell Eckart Budelmann Kathie Claret Arturo Battista

Transcription

1 Effective Distribution Strategies in the EU 24 February 2016 Robert Bell Eckart Budelmann Kathie Claret Arturo Battista

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 Competition and Markets Authority, 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 2015 and Chambers UK Contact: robert.bell@bryancave.com

3 2 Speakers Eckart Budelmann, managing partner of the German offices of Bryan Cave, has more than 15 years of experience in advising both national and international clients on mergers and acquisitions (M&A) as well as corporate and finance matters. A large number of the M&A transactions that he has been advising on both the buy side and the sell side concerned distressed companies that were undergoing a restructuring. Mr. Budelmann understands the processes, the negotiation dynamics and the commercial needs of the clients. He is able to comprehensively assess risk and to develop solutions to complex issues thereby representing both the legal as well as the commercial interests of his clients. He has experience in leveraged and acquisition finance, structured finance and general banking. He specializes in complex financing transactions for international banks and financial institutions - acting for both lenders and borrowers on domestic and cross-border transactions. In term of industries, Mr. Budelmann has advised companies operating in the public transport sector including rail and cargo services since the beginning of his legal career. Clients frequently request his services due to his extensive knowledge in this area. Contact: eckart.budelmann@bryancave.com

4 3 Speakers Kathie Claret has practiced in France for more than 30 years. She advises on mergers and acquisitions, sales, joint ventures, strategic alliances, codes of ethics and licensing and distribution agreements. She also represents clients in commercial disputes, in particular involving products liability, intellectual property rights, distribution networks and other contractual matters. In addition, Ms. Claret advises companies on France s challenging labor and employment laws and represents them in ensuing litigation. She acts for French and multinational clients, particularly in the fields of fashion, food and beverage, construction, software and consumer products. Contact: kathie.claret@bryancave.com

5 4 Speakers Mr. Battista completed his legal apprenticeship and practiced civil and bankruptcy law in Milan before joining SILS, the Italian law firm affiliated with Bryan Cave s international network, in His current practice focuses on international corporate and competition law, business litigation and arbitration. Contact: arturo.battista@bryancave.com

6 5 Agenda 1. Routes to Market 2. Key EU Issues 3. German Developments 4. French Developments 5. Italian Developments 6. UK Developments 7. Conclusions

7 6 Corporate models: EU subsidiaries Agents Own website sales Independent distributor models Exclusive or non-exclusive distribution Selective distribution Franchising Third party website sales Routes to Market

8 7 Agents Most Favoured Nation Clauses Internet Selling: Use of online marketplaces Geo-blocking EU Commission investigation into E-Commerce Key EU Issues

9 8 HRS German Developments Best Price Clause The German FCO prohibited leading German hotel portal company HRS from applying a BPC clause which required HRS s hotel partners to offer their lowest rates to HRS s booking website. It also pursues proceedings against Booking.com and Expedia The Cartel Office believed BPC clauses created barriers to entry and prevented price competition Given the fact that HRS had a market share of more than 30%, the effects of the BPC clause in question were particularly pronounced In January 2015, the Düsseldorf Higher Regional Court rejected HRS appeal against the Cartel Office decision and confirmed that HRS s BPC clause restricts competition to such a degree that it cannot be exempted Decision of German FCO in December 2015 pursuant to which even narrow BPC meet competitive concerns

10 9 German Developments Online Market Places Various car manufacturers introduced so-called internet standards to car retailers that where limiting sales which car retailers originated from car portals (Autohaus24 GmbH and MeinAuto GmbH) The violation of the internet standards led to substantial losses of commission payments The German FCO took the view that the restrictions imposed on the car retailers were anti-competitive since the cooperation between the car retailers and the car portals was adversely affected. Car manufacturers agreed to abandon internet standards and German FCO closed proceedings initiated against car manufacturers in return.

11 Agent French Developments Agent vs. Distributor (Pros and Cons) Principal may fix resale prices and range of negotiation of terms and conditions Legally fixed notice periods (1 month-first year, 2 monthssecond year, 3 months-third year and following, per Article L of the Commercial Code) Termination of even fixed-term agency by (or imputable to)* principal gives rise to substantial termination indemnity (generally 2 years remuneration, regardless of agent s contribution of clientele, to commercial agent barring his serious fault** (L , ) *Courts will carefully scrutinize negotiations relating to a possible renewal of agency. In Cass.com., Dec. 17, 2015, principal ended negotiations but court found that agent was responsible. ** Serious fault could consist of agent s breach of contract in failing to report to and inform principal of its financial situation (Cass. com., Nov. 24, 2015). Distributor Supplier may not fix resale prices or resale terms and conditions and in an interesting twist, distributor may not normally transfer the risks of poor sales or diminishing prices back to supplier (C.A. Paris, Nov. 25, 2015; C.A. Paris, Oct. 1, 2014) Sufficiency of Notice period based on court s evaluation of length of relationship, trade usages and industry wide agreements (case law tends in practice to recognize sufficient notice of at least 6 months, failing which distributor is entitled to its gross margin (Cass. Com., Nov. 24, 2015), per L (I) (5 ) of the Commercial Code) No termination indemnity due 10

12 11 French Developments The (Likely) End to Price Parity Clauses* August 2008: Per se non-enforceability and weighing the parties obligations Article L II-d ( anti-mfn clauses ) Clauses or contracts providing for the automatic benefit of more favorable conditions granted to competitors are null and void. Article L I-2 ( significant imbalance ) A commercial party is liable for subjecting or trying to subject a commercial partner to obligations which create a significant imbalance between the parties. October 2011: Paris Commercial Court finds Expedia, TripAdvisor and Hotels.com liable for deceptive and misleading practices regarding prices and availability July 2013: Complaint to FCA against Booking.com, Expedia and HRS claiming entente and abuse of dominant position September 2013: CEPC advisory opinion against price parity clauses based on Commercial Code: November 2013: Ministry of Economy sues Expedia before Paris Commercial Court December 2014: Booking.com proposes commitments including elimination of price parity clauses as regards indirect booking channels April 2015: Booking.com issues stricter, revised commitments including elimination of price parity clauses as regards all offline booking channels June 2015: FCA accept Booking.com revised commitments May 2015: Paris Commercial Court invalidates price parity clauses based on significant imbalance (L ) August 2015: French Code of Tourism amended to require OTAs, subject to a fine of 150,000 for legal entities, to enter into contracts with hotels as the latter s agents, specifying room prices *mostly but not exclusively re on-line travel agencies ( OTAs )

13 12 Pricing restrictions Italian Developments In January 2016, the ICA opened indepth investigation into the Italian Banking Association (association of undertakings) for setting forth a specific pricing system Abuse of Dominance State-owned companies abusing their economy strength for increasing market share in the downstream market: The Enel case

14 13 Italian Developments Blocking services provided by digital application In November 2015, the ICA made a public statement in favour of the enacting of new legislative rules governing the Italian urban transport sector

15 14 UK Developments Pricing restrictions CMA Statement of Objections to bathroom fitting manufacturer and commercial refrigerator company in January 2016 MFNs Private motor insurance Booking.com and Expedia = Agency or retail price maintenance?

16 15 UK Developments Geo-blocking CMA retail inquiry Blocking online sales OFT mobility scooter case of 2013

17 16 Conclusion Competition authorities are grappling with the challenges posed by digital markets. Pricing restrictions remain a key issue Focus on role of Agents in competition policy

18 eu-competitionlaw.com 17

19 CPD points and CLE credit are available for this webinar and may be collected by ing: 18

20 19 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. #329285