Keywords
antitrust, application of article 101 TFEU, definition of an undertaking
Abstract
Distribution systems have become more and more complex and tend to use different legal solutions to fulfill the aims of the producer. One of them can be agency. From the perspective of competition law, agency holds a special status, resulting from the fact that an agent is present in two distinct relevant markets. In one market an agent represents the principal in the conclusion of a contract, in the second market it offers its own services as an agent. This specific causes some practical difficulties and is interesting from a theoretical point of view. The erroneous qualification of a distributor as an agent could result in fines being imposed by competition authorities. However, as to the first of the aforementioned markets, according to an interpretation of Article 101 TFEU, an anticompetitive agreement cannot be concluded between the same person. This could lead to agency agreements being immune from competition law requirements. It is imperative to recognize the difference. The criteria for the application of Article 101 TFEU to agency agreements were set out by the European Commission in 1962 and repeatedly considered by the jurisprudence of the Court of Justice of the European Union. Nevertheless, the enigma is far from being resolved since the proposed solutions tend to be incoherent. One of them concentrates on the single economic entity doctrine. Another refers to auxiliary theory. The most recent approach focuses on risks undertaken by an agent in relation to the contracts that it negotiated.
Recommended Citation
Kozak, M. (2012). Agency in the light of Article 101 TFEU. How to chase a rabbit without actually catching it ?. internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation), 1(4), 28-43. Retrieved from https://press.wz.uw.edu.pl/ikar/vol1/iss4/3
First Page
28
Last Page
43
Page Count
15
Publisher
University of Warsaw
