Distribution Agreements Between Competitors

Therefore, it is important for suppliers and distributors not only to avoid such agreements with their competitors, but also to avoid putting themselves or their distributors in a position where they could be considered as participants in a horizontal conspiracy at the distribution level of one of the distribution partners. Therefore, suppliers should not exchange current or future price or production information with their competitors, not use their common distributors to facilitate such an exchange of information, should not share a distributor`s price information with other distributors and should not agree with the territorial allocations made by their distributors instead of being imposed by the supplier. Distributors should not share with one supplier the price or production information they have received from another supplier. Similarly, suppliers should not share information about their joint distributors, as such an exchange could support the assertion of a concerted refusal of transactions if both suppliers then decide to terminate their relationship with the distributor. In anticipation of its future publication, we would like to briefly mention the decision of March 16, 2020, by which the Competition Authority of Apple and two of its wholesalers, Tech Data and Ingram, due to antitrust practices within the Apple product distribution network and a (…) Irrespective of this risk, the Commission has established a relatively clear framework within which agreements can be concluded between competitors that include joint production, purchase or sale/marketing or cooperation with regard to R&D or IPR licences. The Guidelines confirm that the exchange of information presents a low risk if: the Technology Transfer Block Exemption (TTBE) 8 provides for an automatic exemption under Article 101(3) for the licensing between competitors of copyright patents, know-how and software, provided that the combined shares held by competing undertakings in the market for the technology or products concerned do not exceed 20%. ftbe will not apply and it will be necessary to carry out an individual assessment to determine whether the licence would limit competition and be likely to infringe competition law. In 2007, in Leegin Creative Leather Products, Inc v. PSKS, Inc., the U.S. Supreme Court ruled that all vertical agreements (i.e., agreements between buyer and seller, including up to resale prices), are adjudicated in federal law on the basis of the “rule of reason” that the Tribunal must determine whether anti-competitive harm is outweighed by potential competitive advantages, not by the rule in itself, which makes conduct illegal without taking into account the justifications invoked. . . .