ARTICLES : HEADS OF DISTRIBUTION - NETWORKS - DISTRIBUTORS - CRITERIA - CONTROL - CONCEPT

The control of distributors by the heads of distribution - Definition and issues

The relations between heads of distribution networks and their distributors are currently the subject of renewed antitrust focus. In light of both EU and domestic case law, certain criteria can be applied to determine whether the head of a network should be deemed to have taken control over its distributors. However, where such control is deemed to exist, this is merely a preliminary step in the application of antitrust rules. Indeed, while the concept of “control” arises in the contexts of both cartel law and merger law, its legal consequences differ: in the merger context, it triggers a notification requirement, while in the cartel context, it can entail exclusion from the application of antitrust rules. The central question is thus whether these consequences are alternative or cumulative, in light of the fact that the definition of “control” is the same in both cartel and merger law.

*This article is an automatic translation of the original article, provided here for your convenience. Read the original article. 1. As the Commission prepares its draft revision of the regulation on vertical [1]restraints, and after the new Competition Authority has had its powers redefined by the Law on the Modernisation of the Economy (LME) [2], relations between suppliers and distributors are the subject of renewed attention in competition law. 2. Thus, the concept of control has been at the centre of recent decisions both in anti-competitive practices law and merger law. The classification of the headend's control over its members thus conditions the obligation to notify the operation and its authorisation and/or the application of the competition rules relating to vertical

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Laurent François-Martin, The control of distributors by the heads of distribution - Definition and issues, February 2010, Concurrences N° 1-2010, Art. N° 30360, pp. 63-70

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