Distribution agreements

Transcription

1 Distribution agreements Recent decisions of the Swiss Competition Authority Hubert Orso Gilliéron, Baker & McKenzie Geneva Baker & McKenzie International is a Swiss Verein with member law firms around the world. In accordance with the common terminology used in professional service organizations, reference to a partner means a person who is a partner, or equivalent, in such a law firm. Similarly, reference to an office means an office of any such law firm.

2 Introduction 2

3 Introduction Evolution of CHF EUR exchange rate increased arbitrage possibilities evidenced potential infringements Main decisions with a direct impact on multinational companies: Nikon BMW Electrolux / V-Zug: reminder 3

4 Nikon 4

5 Nikon 1. Scope of CartA Geographical scope Agreements between firms abroad fall within the scope of the CartA if an effect in Switzerland is possible, i.e. possible harm to competition in Switzerland suffices Material scope: object or effect No need for an effective implementation of an agreement No need of a deliberate intent of the Parties 5

6 Nikon Personal scope: Parties to the agreement producer / importeur importeur / retailer parallel trader who renounced to proceed to parallel imports following to pressure by the producer 6

7 Nikon 2. Relationship with IP Rights The owner of a patent may oppose to the import into Switzerland of a protected good provided it is not contrary to Swiss competition law The deliberate use of IP rights to prevent parallel imports into Switzerland and to benefit from arbitrage opportunities prevents the owner of such IP rights to avail from IP regulations 7

8 Nikon 3. Territorial restraints Application of Art. 5 IV CartA Territorial restraints fall within the scope of Art. 5 IV CartA whenever sales outside the allocated territory are excluded, in particular when passive sales are prohibited Restraints to trade within Switzerland or cross-border Any type of contract (franchise, license, etc) preventing passive sales to Switzerland Passive sales into Switzerland must be impossible, not only limited, for art. 5 IV CartA to apply However, the existence of parallel trade is appreciated in the context of the effects of the agreement on the market 8

9 Nikon Restraints to passive sales Restrictions to import on Swiss firms Restrictions to export on foreign firms Obligation to purchase from suppliers within a specific territory or from specific suppliers Obligation to sell products within a specific territory Implied restrictions (e.g. obligation to notify any passive sale) together with effective measures Unilateral decision of the distributor not to sell on specific markets does not fall within the scope of 5 IV CartA 9

10 Nikon Threats and other measures taken into account prohibition to sell threats to limit or interrupt supplies refusal to accept within a selective distribution network refusal to provide warranty services refusal to supply documents in a specific language 10

11 Nikon 4. Rebuttal of the presumption of Art. 5 IV CartA evidence of sufficient parallel trade into Switzerland and existence of sufficient competition among dealers in Switzerland, notably by prices (price differences) or services (intrabrand) or existence of fierce competition among producers (interbrand) 11

12 Nikon 5. Significant restraint to competition existence of parallel imports does not preclude significant impediment to competition, since the amount of parallel trade may have been higher without the restraint importance of the arbitrage possibilities to estimate the amount of parallel trade only price difference among producers is not a sufficient indication of the existence of territorial restraints 12

13 Nikon 6. Justification on grounds of economic efficiency Justification may be envisaged: for a limited period of time (2 years) for new products / new player on the market In casu denied, Nikon well-know brand no new products, but evolution of existing products Presence of Nikon s subsidiary in Switzerland 13

14 Nikon 7. Additional comments presumption that contracts are enforced (pacta sunt servanda) Switzerland does not belong to the EU exclusive sourcing obligations are restrictively admitted selective distribution systems may be questioned if: used for purposes of territorial protection used to refuse distributors who may put pressure on prices 14

15 BMW 15

16 BMW 1. Scope of the CartA agreement restraining the possibility to sell outside the EU is restrictive by object restrictive agreements by non-independent subsidiaries of a group are attributed to the group 2. Art. 5 IV CartA in selective distribution systems, 5 IV CartA applies to restraints imposed on resales by authorized distributors 16

17 BMW 3. Significant restraint to competition A prohibition to sell into Switzerland = prohibition of active and passive sales Presence of a contractual clause: pacta sunt servanda Within selective distribution network, possible to prohibit the sourcing of contractual products from non-authorized dealers Priority of ComVert on Communication on motor vehicles 17

18 BMW Estimation of arbitrage opportunities need to take taxes and transaction costs no need to consider compulsory options imposed on the customers price differences not necessarily expressed in %, since the opportunity to make parallel imports will mostly depend on the amount at stake 18

19 BMW 4. Sanctions knowledge of a subsidiary can be attributed to the mother company increased expectations towards large companies 19

20 Electrolux / V-Zug 20

21 Electrolux / V-Zug Denial by manufacturers to retailers to distribute products on the Internet Failing special circumstances, art. 5 para. 4 CartA not applicable to prohibition of Internet sales Special circumstances Recommended prices, rebate policies Technical territorial restraints to consumers (automatic deviation, refusal of payments from abroad) 21

22 Electrolux / V-Zug Possible restraints to on-line distribution Qualitative restraints (presentation, image, service) Link on-line distribution with brick and mortar point of sale Clear indication of the brick and mortar point of sale and identity of the distributor 22

23 Comments 23

24 Sourcing obligations Selective distribution: no possibility to limit cross-supplies within a selective distribution network => no exclusive sourcing obligation Exclusive distribution: exclusive sourcing allowed only in exceptional circumstances Other systems: risky under Swiss law 24

25 Selective distribution Can be challenged in several ways: Indirect territorial protection: means of territorial protection means of eliminating competitive distributors safe harbour is not safe Cumulative effects need for selective distribution consequences on limitation of cross-supplies / prohibition of passive sales outside the network 25

26 National solutions by producers / importeurs Nikon: potential indirect means of preventing parallel trade possible indication of effective intra-brand competition BMW: mandatory additional services and options restraint to service intra-brand competition 26

27 Conclusion 27

28 Conclusion Wording important Switzerland does not belong to the EU Sourcing obligations to be handled with care Selective distribution at risk National solutions may be interpreted differently 28

29 Thank you! Baker & McKenzie International is a Swiss Verein with member law firms around the world. In accordance with the common terminology used in professional service organizations, reference to a partner means a person who is a partner, or equivalent, in such a law firm. Similarly, reference to an office means an office of any such law firm.