Agency agreements

Foreword Agency agreements: An overview of EU and national case law

Discussions on agency agreements have long focused on the distinction between “genuine” and “non-genuine” agents and on the question of who, between the principal and the agent, bears the risks. As the literature on this distinction is profuse, the current article will mainly attempt to give an overview of recent cases in which principals and/or agents were found liable for anticompetitive behavior under Article 101(1) or 102 TFUE, especially where the agreement facilitated collusion or price control. The principal’s liability for its agent’s conduct is particularly at stake in such cases.

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General Court of the European Union (Luxembourg)
Luxembourg 130 contributions 48606 visits

Unilateral Practices

 The New Zealand Competition Authority amends the authorisation it granted for a cooperation agreement between two horse and greyhound betting companies to also apply to a multinational sports betting company (TAB / Tabcorp / Entain)
New Zealand Commerce Commission (Wellington)
New Zealand 180 contributions 25382 visits
Commerce Commission amends TAB/Tabcorp authorisation* Following a request from TAB New Zealand, the Commerce Commission (Commission) has decided to amend the authorisation granted by the Commission to certain arrangements between the New Zealand Racing Board (now called TAB) and Tabcorp (...)

The New Zealand Competition Authority receives a request to vary the terms of an existing cooperation agreement between two horse and greyhound betting companies (TAB / Tabcorp / Entain)
New Zealand Commerce Commission (Wellington)
New Zealand 180 contributions 25382 visits
TAB seeks variation to authorisation of its arrangements with Tabcorp to reflect strategic partnership agreement with Entain* The Commerce Commission (Commission) has received a request from TAB New Zealand (TAB) seeking to vary the authorisation granted by the Commission to certain (...)

The Turkish Competition Authority publishes a decision ruling that state owned financial entities are under the Same Economic Unity (Gunes Sigorta / Vakifbank)
ACTECON (Istanbul)
Turkey 9 contributions 1895 visits
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ACTECON (Istanbul)
Turkey 8 contributions 2016 visits
On 9 December 2020, the Turkish Competition Authority (“TCA”) published a reasoned decision concerning an individual exemption application regarding two bancassurance agreements signed between (i) Güneş Sigorta A.Ş. (“Güneş Sigorta”) and Türkiye Vakıflar Bankası T.A.O. (“Vakıfbank”), (ii) (...)

The Russian Competition Authority reaches an agreement with the HSE Technology Transfer Center to further simplify the terms of technology transfer in the breeding sector after negotiating with a pharma company (Bayer)
Russian Federal Antimonopoly Service (Moscow)
France 327 contributions 57329 visits
Bayer offered more favorable conditions for transfer of germplasm to russian breeders* Russian breeding companies that receive germplasm transferred by Bayer as part of the FAS Russia’s ruling based on the result of the Bayer&Monsanto transaction will be fully exempt from paying (...)

The German Federal Court of Justice rules that a car manufacturer’s selective distribution system limiting the supply of new vehicles and spare parts to tuning services providers is a by-object restriction (Porsche Tuning II)
Van Bael & Bellis (Brussels)
Belgium 24 contributions 5068 visits
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Van Bael & Bellis (Brussels)
Belgium 32 contributions 4343 visits
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Van Bael & Bellis (Brussels)
Belgium 174 contributions 58598 visits
On 6 July 2021, the German Federal Court of Justice (“FCJ”) upheld an injunction against Porsche and its German distributor (“Porsche” or the ”Defendants”) in favor of an industry association whose members manufacture and distribute customized parts for tuning purposes (the “Association”). The (...)

The Australian Competition Authority institutes proceedings in the Federal Court against printing company for unfair contract terms for small businesses (Fuji Xerox)
Australian Competition and Consumer Commission (Canberra)
Australia 399 contributions 84672 visits
Fuji Xerox in court over alleged unfair contract terms* The ACCC has instituted proceedings in the Federal Court against printing company Fuji Xerox Australia Pty Ltd and a related company (together, Fuji), alleging that in total nine types of Fuji’s standard form small business contracts (...)

The Amsterdam Court of Appeal finds no abuse of dominance by one of the largest national real estate agencies in its ranking of online advertisements (VBO / NVM / Funda)
Bird & Bird (The Hague)
Netherlands 2 contributions 464 visits
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KPN (Amsterdam)
Netherlands 33 contributions 7381 visits
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Bird & Bird (The Hague)
Netherlands 34 contributions 8942 visits
On 26 May 2020, the Amsterdam Court of Appeal (“Court”) delivered its judgment in a dispute between the real estate association VBO Makelaars (“VBO”) versus the Dutch Association of Real Estate Agents (“NVM”) over the online real estate platform of Funda Real Estate (“Funda”). The Court (...)

The Bosnia & Herzegovina Court upholds the infringment decision of the Competition Authority concerning abuse of dominant positions on the market for fast money transfer services (Raiffeisen Bank)
University of Macau - Faculty of Law
China 284 contributions 226321 visits
On 6 November 2012 the Competition Authority of Bosnia & Herzegovina (KV) found that four Western Union agents have abused their collective dominant position on the market for fast money transfer services by including the exclusivity clauses in their cooperation agreements with the banks (...)

Anticompetitive practices

 The Australian Competition Authority secures commitments from a seed producer to remedy anticompetitive agency agreements (Cotton Seed Distributors)
Australian Competition and Consumer Commission (Canberra)
Australia 399 contributions 84672 visits
Cotton Seed Distributors removes potentially anti-competitive restraints in agency agreements* The sole supplier of cotton planting seed in Australia, Cotton Seed Distributors Ltd (CSD), has provided a court-enforceable undertaking to address ACCC concerns about potentially anti-competitive (...)

The Australian Competition Authority gives the go-ahead to agreements between an airline and its partners allowing the partners to set flight prices which the airline then sells on their behalf (Virgin Australia)
Australian Competition and Consumer Commission (Canberra)
Australia 399 contributions 84672 visits
ACCC proposes to authorise Virgin Australia’s codeshare arrangements* The ACCC has issued a draft determination, proposing to grant authorisation for Virgin Australia to enter into codeshare pricing arrangements with its international airline partners for 5 years. Under the arrangements, (...)

The EU Commission publishes its staff working document on the vertical block exemption regulation
Zepos & Yannopoulos (Athens)
Greece 35 contributions 3806 visits
On 8 September 2020, the European Commission (“Commission”) published its Staff Working Document (“SWD”) in the context of the ongoing evaluation of Regulation (EU) No 330/2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union (“TFEU”) to categories of (...)

The EU Commission publishes a report on the vertical block exemption regulation and the accompanying guidelines on vertical restraints
Covington & Burling (Brussels)
Belgium 14 contributions 5674 visits
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Covington & Burling (Brussels)
Belgium 49 contributions 18314 visits
On 25 May 2020, the European Commission (“Commission”) has published its Final Report of the support studies for the evaluation of its Vertical Block Exemption Regulation (“VBER”) and the accompanying Guidelines on Vertical Restraints (the “Final Report”). The Final Report was published (...)

The Federal Court of Appeals for the District of Columbia grants motion to intervene by 12 car manufacturers, supporting government on uniform federal emissions standards, following the announcement of DOJ investigation of four other carmakers (Environmental Defence / National Highway)
Richard Wolfram, Esq. (New York)
United States 3 contributions 2444 visits
TWELVE OTHER CARMAKERS MOVE TO SUPPORT GOVERNMENT ENFORCEMENT OF UNIFORM FEDERAL STANDARDS ON EMISSIONS - WILL THE DOJ INVESTIGATE?* This article follows up on an October 15, 2019 article by the author on a reported investigation by the DOJ Antitrust Division into possible ‘collusion’ by (...)

The Indian Competition Authority reconsiders a price fixing case referred back from the Appellate Tribunal and imposes revised fines against airline companies for fixing fuel surcharge rates for cargo transportation (Jet Airways / InterGlobe Aviation / Spice Jet)
Vaish Associates Advocates (New Delhi)
India 263 contributions 43184 visits
Competition Commission of India (“CCI”) imposes penalty on Jet Airways, IndiGo Airlines and Spicejet for fixing fuel surcharge rates* By way of an order dated March 7, 2018, the CCI has imposed a cumulative penalty of approx. INR 54 Crores on Jet Airways (India) Ltd (‘Jet Airways’), (...)

The EU Commission publishes its final e-commerce sector inquiry report
Van Bael & Bellis (Brussels)
Belgium 174 contributions 58598 visits
On 10 May 2017, the European Commission (“Commission”) published its final Report on the e-commerce sector inquiry (“the Report”), aimed at identifying business practices in the sector that might restrict competition and limit consumer choice. The Report consists of two documents: (i) a (...)

The Italian Competition Authority discovers two price-fixing arrangements in the market for the real estate brokerage services but decides not to fine the anticompetitive conducts as they were not a serious competition breach (Usi in Materia di Mediazione Immobiliare)
Municipality of Cagliari
168 contributions 134373 visits
By the recent decision handed down in the case Usi in Materia di Mediazione Immobiliare (UMMI) the Italian Competition Authority (ICA) has closed an antitrust investigation by finding two price-fixing arrangements in the market for the real estate brokerage services agents implemented by two (...)

The EU Commission fines three banks for cartel on the euro interest rate derivatives market (Crédit Agricole / HSBC / JPMorgan Chase)
European Commission - DG COMP (Brussels)
Belgium 1363 contributions 2938921 visits
Antitrust: Commission fines Crédit Agricole, HSBC and JPMorgan Chase € 485 million for euro interest rate derivatives cartel* The European Commission has fined Crédit Agricole, HSBC and JPMorgan Chase, a total of € 485 million for participating in a cartel in euro interest rate derivatives. (...)

The Turkish Competition Authority publishes its reasoned decision on the investigations conducted upon the allegation of resale price fixing in the auto gas market (Aygaz)
ELIG Gürkaynak Attorneys-at-Law (Istanbul)
Turkey 173 contributions 84178 visits
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Turkey 10 contributions 4615 visits
This case note analyses the Turkish Competition Board’s (“Board”) Aygaz decision dated 16.11.2016 with No. 16-39/659-294. The Board assessed allegations that Aygaz and its wholly-owned subsidiary, Mogaz A.Ş. (“Mogaz”), had engaged in resale price maintenance (“RPM”). Background The Board (...)

The EU Court of Justice issues a preliminary ruling on the liability for anti-competitive behaviour by employees and outside contractors (VM Remonts)
Hogan Lovells (Brussels)
Belgium 8 contributions 3504 visits
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European Commission - DG COMP (Brussels)
Belgium 6 contributions 7088 visits
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Baker Botts (London)
United Kingdom 9 contributions 2536 visits
Liability for anti-competitive behaviour by your employees and outside contractors: when you are off the hook and when you are not* In its recent VM Remonts judgment, the Court of Justice of the EU has confirmed the strict liability of companies for the anti-competitive behaviour of their (...)

The EU Commission opens a preliminary investigation concerning possible collusion in the money transfer market (Western Union)
Phillips Auctioneers (London)
5 contributions 3183 visits
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Constantine Cannon (London)
United States 12 contributions 5977 visits
EU telegraphs it is probing whether Western Union colluded to drive rivals out of money-transfer market*The European Commission has reportedly launched a preliminary antitrust investigation into possible collusion by Western Union in the money remittance market.According to sources, the (...)

The EU Commission opens a preliminary antitrust investigation concerning possible collusion in the money transfer market (Western Union)
Simmons & Simmons (London)
United Kingdom 19 contributions 4878 visits
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Agoda (Bangkok)
Thailand 12 contributions 4244 visits
In February 2016, it was reported that the European Commission is undertaking a preliminary antitrust investigation in relation to possible collusion in the money transfer market, continuing the trend of the Commission focussing on the financial sector in recent years. Focus of the (...)

The Italian Competition Authority opens an investigation regarding a potential uncompetitiveness of the SEDA multilateral inter-bank agreement (Associazione Bancaria Italiana)
Queen Mary University of London
United Kingdom 8 contributions 4345 visits
On the 21th of January 2016, the Italian Competition Authority (the “Authority” or “Italian Authority”) opened an investigation against the Italian banks’ association, Associazione Bancaria Italiana (“ABI”) for a possible anticompetitive agreement under Article 101 of the Treaty on the (...)

The Italian Supreme Administrative Court overturns the National Competition Authority concerning cases of anticompetitive codes of professional ethics in the medical profession (Fnomceo)
Studio Legale Scoccini (Rome)
Italy 13 contributions 6172 visits
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Gatti Pavesi Bianchi Ludovici (Rome)
Italy 2 contributions 1473 visits
The Italian Supreme Adminstrative Court rules on limitation period in cases of anticompetitive codes of professional ethics On the 19th of January 2016 the Italian Supreme Administrative Court (Consiglio di Stato), overturned a decision of the National Competition Authority concerning (...)

The Chinese State Administration for Industry and Commerce fines insurance companies for market sharing (Insurance Companies)
University of Melbourne
Australia 103 contributions 29836 visits
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China Competition Bulletin (Beijing)
China 101 contributions 26787 visits
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Hogan Lovells (Beijing)
China 81 contributions 21087 visits
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Recently, the SAIC published the decisions of its local offices in Hubei and Jiangxi relating to market sharing agreements by insurance companies. Both decisions involved coinsurance arrangements relating to accidental injury insurance for the construction industry. Hubei The Hubei (...)

The Indian Competition Commission fines airlines for fixing fuel surcharge and shows a change in the evidentiary standard in cartel cases involving price parallelism and circumstantial evidence (Jet Airways / InterGlobe Aviation / Spice Jet)
Chandhiok & Mahajan (New Delhi)
India 12 contributions 2518 visits
CCI imposes penalty of USD 38.6 million on airlines for fixing fuel surcharge* Just when one almost thought that the year 2015 would go by without a major cartel fine, the Competition Commission of India (CCI) published a decision on 17 November 2015 imposing penalties of USD 38.6 million (...)

The Indian Competition Commission fines airlines for a cartel regarding fuel surcharge (Jet Airways / InterGlobe Aviation / Spice Jet)
Sarvada Legal (New Delhi)
7 contributions 1624 visits
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Sciences Po (Paris)
France 3 contributions 683 visits
Introduction Continuing with its mandate of preventing any practice which has an appreciable adverse effect on competition (AAEC) in India including crackdowns on cartel, the Competition Commission of India (CCI) has, recently, found a case of cartelization in the airline industry segment in (...)

The French Competition Authority obtains commitments from several mainland alcohol manufacturers aiming to stop the exclusive distribution of their products in the French overseas territories (Pernod-Ricard)
French Competition Authority (Paris)
France 748 contributions 410495 visits
Distribution of consumer goods in the French overseas territories* The Autorité de la concurrence has obtained from several mainland manufacturers their commitment to put an end to the exclusive distribution of their products in the French overseas territories and to implement a competitive (...)

The EU General Court reduces the fines imposed by the Commission on three members of a EU pre-stressing steel market cartel (Pre-stressing steel cartel)
Van Bael & Bellis (Brussels)
Belgium 389 contributions 95176 visits
On 15 July 2015, the General Court (“GC”) largely upheld the EU Commission’s decision in the pre-stressing steel cartel case in ten judgments on 12 separate appeals brought against the decision. However, the GC reduced the fine imposed on several applicants on the grounds that (i) the (...)

The EU Court of Justice considers that the bilateral exchange of pre-pricing informations to a concerted practice with the object of restricting competition is an anticompetitive practice (Dole)
Herbert Smith Freehills (Brussels)
Belgium 121 contributions 74303 visits
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Herbert Smith Freehills (London)
United Kingdom 60 contributions 21705 visits
This article has been nominated for the 2016 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. In its ruling of 19 March 2015 (Case C-286/13P) relating to the banana cartel, the Court of Justice of the EU (CJEU) dismissed the appeal by banana importer (...)

The Lithuanian Supreme Administrative Court reduces fine in the shipbrokers cartel case (Lithuanian Shipbrokers Association)
ESG Legal (Vilnius)
Lithuania 13 contributions 8260 visits
On 4 March 2015, Lithuanian Supreme administrative Court issued the second decision in the Lithuanian Shipbrokers and Agents Association cartel case. In 2011, the Competition Council of the Republic of Lithuania fined the Lithuanian Shipbrokers and Agents Association (the Association) and 32 (...)

The Lithuanian Supreme Administrative Court upholds Competition Council’s cartel decision in the shipping sector (Lithuanian Shipbrokers and Agents Association)
European Commission - DG COMP (Brussels)
Belgium 714 contributions 220546 visits
Court Upholds Competition Council’s Cartel Decision in Shipping Sector* On 4 March 2015, the Supreme Administrative Court confirmed that the Lithuanian Shipbrokers and Agents Association (the Association) and 32 Association members had concluded an anti-competitive agreement. On 8 December (...)

The Hungarian Competition Authority imposes fines on seven undertakings for having implementing an anticompetitive agreement in the car refinishing paints used in domestic damage calculation software market (Autocolor Festékgyártó és Forgalmazó)
Hungarian Competition Authority (Budapest)
Hungary 95 contributions 19872 visits
Press Release published on the official website of the Hungarian Competition Authority. GVH decision is made in the car refinishing paints agreement* The Gazdasági Veresenyhivatal (GVH – the Hungarian Competition Authority) stated that importers of car refinishing paints and an (...)

The US District Court for the Northern District of California finds that an athletics association’s rules restricting payments to student-athletes violate antitrust laws (O’Bannon / NCAA)
Rutgers University (New Brunswick)
United States 26 contributions 25755 visits
On August 8, 2014, in O’Bannon v. National Collegiate Athletic Association (NCAA), Judge Claudia Wilken of the U.S. District Court for the Northern District of California found that the NCAA violated the antitrust laws by enacting rules that prevented student-athletes from being paid for the (...)

The US District Court for the Southern District of New York receives notification that both the class plaintiffs, state plaintiffs and the defendants have reached an agreement concerning the lawsuit in the e-books price fixing case (Apple)
DLA Piper Weiss-Tessbach (Vienna)
Austria 26 contributions 7700 visits
Apple settles with U.S. states and consumers in the e-books price fixing case* According to documents filed in a New York court on 16 June 2014, Apple has reached an agreement in principle with state governments and consumers who filed a class-action lawsuit in the e-books price fixing case (...)

The Italian Competition Authority closes its investigation into eight of the biggest Italian insurance companies with a commitment decision (Agenti monomandatari)
BonelliErede (Rome)
Italy 41 contributions 54302 visits
On 20 May 2014, the Italian Competition Authority (“ICA” or “Authority”) closed the investigation it had begun in June 2013 into eight of the biggest Italian insurance companies by issuing a commitment decision . The Authority had opened the investigation to assess whether the vertical (...)

The Italian Competition Authority issues a commitment decision in the insurance sector (Agenti monomandatari)
European Commission - DG COMP (Brussels)
Belgium 714 contributions 220546 visits
Italy: The Italian Competition Authority issues Commitment Decision in Insurance Sector* On 20 May 2014, the Italian Competition Authority (ICA) issued a commitment decision, accepting the corrective measures proposed by major national insurance companies to meet the competition concerns (...)

The Italian Competition Authority closes the antitrust probe into agency agreements in the insurance sector with a commitment decision (Agenti monomandatari)
Studio Legale Scoccini (Rome)
Italy 13 contributions 6172 visits
In its decision of 20 May 2014 the Italian Competition Authority (ICA) has accepted the commitments offered by seven major insurance companies to end an antitrust investigation into vertical agreements with their agents. The investigated insurance companies were UnipolSai Assicurazioni, (...)

The Australian Competition and Consumer Authority issues a draft determination proposing to allow royalty managers for plant breeders to collectively negotiate with the grain buyers (Seedvise)
Australian Competition and Consumer Commission (Canberra)
Australia 399 contributions 84672 visits
ACCC proposes to authorise plant breeders’ collective bargaining arrangements* The Australian Competition and Consumer Commission has issued a draft determination proposing to allow royalty managers for plant breeders to collectively negotiate with the grain buyers they engage to collect (...)

The German Federal Court of Justice clarifies the limits of no-poach agreements under the German commercial law
Jones Day (Dusseldorf)
Germany 19 contributions 6515 visits
In a decision dated 30 April 2014, but published only recently, the German Federal Court of Justice (“FCJ”) struck down an agreement between two companies not to “poach” each others’ employees as violating the German Commercial Code (Handelsgesetzbuch, “HGB”). However, the FCJ also clarified (...)

The Canadian Competition Tribunal suspends a settlement between the Competition Authority and e-book publishers related to a price MFN clause (Kobo)
Conzen O’Connor (Toronto)
France 23 contributions 5892 visits
The Ebooks Saga: Kobo’s challenge explained* Ebook retailer Kobo is challenging a settlement entered into by the Competition Bureau with ebook publishers. The settlement has been stayed pending this challenge. Kobo’s challenge may have major implications for competition law enforcement in (...)

The Lithuanian Supreme Administrative Court reduces fines for undertakings involved in price fixing (Lithuanian Shipbrokers and Agents Association)
Central Electoral Commission of the Republic of Lithuania (Vilnius)
Lithuania 6 contributions 1044 visits
On April 7th, 2014, The Lithuanian Supreme Administrative Court supported position of Competition Council of the Republic of Lithuania (hereafter – NCA) in case of ship agency services . Several undertakings which were accused of fixing ship agency tariffs also celebrated a small victory – (...)

The Lithuanian Supreme Administrative Court approves the decision that a national professional association and 32 association members entered into an anticompetitive agreement on the application of minimum tariffs for shipping agency services (Lithuanian Shipbrokers and Agents Association)
Lithuanian Competition Authority (Vilnius)
Lithuania 106 contributions 20885 visits
Supreme Administrative Court upholds competition council‘s decision to sanction Shipping Agency Companies* On 7 April, the Supreme Administrative Court of Lithuania (the Court) approved the Competition Council‘s (the KT) decision concluding that Lithuanian Shipbrokers and Agents Association (...)

The Hungarian Competition Authority imposes fines for resale price maintenance in the market for dental handpieces (Dentalwerk Bürmoos)
Hungarian Competition Authority (Budapest)
Hungary 95 contributions 19872 visits
Restrictive agreements on the market of dental handpieces* The Hungarian Competition Authority (Gazdasági Versenyhivatal – GVH) established that W&H Dentalwerk Bürmoos GmbH and certain of its distributors had breached EU competition rules by concluding restrictive agreements which fixed (...)