Conference - Reform of vertical distribution - Roundtable III : Legal categories: Selective or exclusive distribution, franchise... Where are the borders? (Paris, 27 May 2010)

This third roundtable of the conference “Reform of vertical distribution”, Paris, 27 May 2010, is dedicated to the legal categories of the various forms of distribution. The first paper goes back over the legalistic and form-based approach that had characterised the Commission’s competition policy in the field of vertical agreements from the 60s’ to the 90s’ and its replacement by an economic and effect-based policy. As a result, the classic legal categories have lost, to a large extent, their prescriptive nature and become mere analytical tools, designed to enable firms and enforcers to interpret the complex economic reality in which competition rules are to be applied. This article recalls the reasons for such a policy reform and, taking selective distribution as an example, shows how the borderlines between various categories of vertical agreements have somewhat faded away. According to the second author, the economisation of the rules does however have its limits. After having first been considered as the object of the prohibition, restrictive clauses now constitute only one of its conditions. According to the last contribution, the importance of legal definitions and categories arguably continue to decline, to the benefit of an effect-based approach which has globally proven successful in spite of a corresponding lessening of legal certainty. The influence of the Commission’s guidelines in national case-law may nevertheless be only gradual. Turning to the specific issue of agency agreements, this article argues that the Commission has taken into account the lessons from recent EU case-law, in particular with respect to the nature and list of risks inherent to the qualification of agency agreements.