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2015G
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Vertical Agreem
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VerticalAgreementsIn 34 jurisdictions worldwide
Contributing editorStephen Kinsella OBE
2015 Law Business Research Ltd 2015
[ Exclusively for: Sidley Austin LLP | 13-Apr-15, 03:51 PM ] Getting The Deal Through
Vertical Agreements 2015Contributing editor
Stephen Kinsella OBESidley Austin LLP
PublisherGideon [email protected]
SubscriptionsSophie [email protected]
Business development managers Alan [email protected]
Adam [email protected]
Published by Law Business Research Ltd87 Lancaster Road London, W11 1QQ, UKTel: +44 20 3708 4199Fax: +44 20 7229 6910
Law Business Research Ltd 2015No photocopying: copyright licences do not apply.First published 2007Ninth edition 2015ISSN 1753-9250
The information provided in this publication is general and may not apply in a specific situation. Legal advice should always be sought before taking any legal action based on the information provided. This information is not intended to create, nor does receipt of it constitute, a lawyerclient relationship. The publishers and authors accept no responsibility for any acts or omissions contained herein. Although the information provided is accurate as of March 2015, be advised that this is a developing area.
Printed and distributed by Encompass Print SolutionsTel: 0844 2480 112
Law Business Research Ltd 2015
[ Exclusively for: Sidley Austin LLP | 13-Apr-15, 03:51 PM ] Getting The Deal Through
CONTENTS
2 Getting the Deal Through Vertical Agreements 2015
Increased Scrutiny of Most-Favoured-Nation Clauses in Vertical Agreements 6Nolle Lenoir, Marco Plankensteiner and Elise CrquerKramer Levin
Argentina 9Julin PeaAllende & Brea
Austria 15Guenter Bauer and Robert WagnerWolf Theiss
Brazil 22Alexandre Ditzel Faraco, Ana Paula Martinez and Mariana Tavares de AraujoLevy & Salomo Advogados
Bulgaria 29Ivan Marinov and Emil DelchevDelchev & Partners Law Firm
Chile 36Pedro Rencoret and Mara Jess CifuentesPellegrini & Ca
China 43Lei LiSidley Austin LLP
Colombia 51Ximena Zuleta-Londoo and Alberto Zuleta-LondooCardenas & Cardenas Abogados
Denmark 56Christina Heiberg-GrevyAccura Advokatpartnerselskab
European Union 63Stephen Kinsella OBE, Patrick Harrison and Rosanna ConnollySidley Austin LLP
France 74Muriel PerrierVivien & Associs
Germany 81Markus M Wirtz and Silke MllerGlade Michel Wirtz
Greece 90Christos GolfinopoulosGolfinopoulos Law Office
Hungary 97Chrysta BnBn, S Szab & Partners
India 104Amit Kapur, Farhad Sorabjee and Amitabh KumarJ Sagar Associates
Ireland 112Helen Kelly and Darach ConnollyMatheson
Israel 119Boaz Golan and Nimrod PrawerB Golan Law Firm
Japan 126Nobuaki MukaiMomo-o, Matsuo & Namba
Latvia 134Ivo Maskalns and Andris DimantsAttorneys at Law Borenius
Malaysia 140Sharon TanZaid Ibrahim & Co
Mexico 147Len Ricardo ElizondoLegal and Economic Avantgarde SC
Netherlands 154Minos van Joolingen and Martijn JongmansBanning NV
Norway 162Thomas Sando and Aksel Joachim HagelerAdvokatfirmaet Steenstrup Stordrange DA
Poland 169Dorothy Hansberry-Bieguska and Magorzata Krasnodbska-Tomkiel Hansberry Tomkiel Spk
Portugal 176Joana Gomes dos SantosCaiado Guerreiro & Associados
Romania 183Carmen Peli, Manuela Lupeanu and Oana BucsaPeli Filip SCA
Russia 192Alexander Egorushkin and Igor PanshenskyAntitrust Advisory
Serbia 199Guenter Bauer and Maja StankovicWolf Theiss
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CONTENTS
Singapore 206Kala Anandarajah, Dominique Lombardi and Tanya TangRajah & Tann Singapore LLP
Spain 213Manuel Contreras and Fernando ReinaHerbert Smith Freehills LLP
Switzerland 220Franz Hoffet, Marcel Dietrich, Gerald Brei and Alain GirardHomburger
Turkey 228Bora kiler and Ali Kaan UarMorolu Arseven
Ukraine 235Igor Svechkar and Oleksandr VoznyukAsters
United Kingdom 242Stephen Kinsella OBE, Patrick Harrison and Rosanna ConnollySidley Austin LLP
United States 252Joel MitnickSidley Austin LLP
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PREFACE
Getting the Deal Through is delighted to publish the ninth edition of Vertical Agreements, which is available in print, as an e-book, via the GTDT iPad app, and online at www.gettingthedealthrough.com.
Getting the Deal Through provides international expert analysis in key areas of law, practice and regulation for corporate counsel, cross-border legal practitioners, and company directors and officers.
Throughout this edition, and following the unique Getting the Deal Through format, the same key questions are answered by leading practitioners in each of the 34 jurisdictions featured. Our coverage this year includes new chapters on Bulgaria, Latvia, Poland, Singapore and Turkey.
Getting the Deal Through titles are published annually in print. Please ensure you are referring to the latest edition or to the online version at www.gettingthedealthrough.com.
Every effort has been made to cover all matters of concern to readers. However, specific legal advice should always be sought from experienced local advisers.
Getting the Deal Through gratefully acknowledges the efforts of all the contributors to this volume, who were chosen for their recognised expertise. We also extend special thanks to the contributing editor, Stephen Kinsella OBE of Sidley Austin LLP, for his continued assistance with this volume.
LondonMarch 2015
PrefaceVertical Agreements 2015Ninth edition
Law Business Research Ltd 2015
[ Exclusively for: Sidley Austin LLP | 13-Apr-15, 03:51 PM ] Getting The Deal Through
MOST-FAVOURED-NATION CLAUSES Kramer Levin
6 Getting the Deal Through Vertical Agreements 2015
Increased Scrutiny of Most-Favoured-Nation Clauses in Vertical AgreementsNolle Lenoir, Marco Plankensteiner and Elise CrquerKramer Levin
Most-favoured-nation (MFN) clauses in the context of vertical agree-ments are, strictly speaking, most-favoured-customer clauses and consist essentially in arrangements between suppliers and distributors whereby the supplier grants the distributor a price that will not be less favourable than the prices granted to its other customers (eg, European Commission, Hollywood film studios and digitisation of European cinemas, IP/11/257, and E.ON Ruhrgas Gazprom, IP/05/710). From this concept different structures of MFN clauses have emerged.
MFN clauses can be reversed into most-favoured-supplier clauses whereby a buyer will assure the seller that it will match the best price offered by one of its competitors disclosed to it by the seller (eg, European Commission, Hollywood studios/European pay-TVs, IP/04/1314 and Universal Music Group/EMI, COMP/M.6458). They also bear similarities to English clauses, which require buyers to report to their suppliers any better offers made by competing suppliers, and allowing them to accept such offers only if the initial suppliers do not match them (European Commission Guidelines on Vertical Restraints, OJ C 130 of 19 May 2010, p1, para. 129; European Court of Justice, judgment of 13 February 1979, Hoffmann-La Roche, 85/76). These clauses are usually considered unlawful as they lead to artificially fixing prices.
During 2014, competition authorities have in particular developed their analysis of MFN clauses in the online sales sector. An overview of recent European cases provides clearer guidelines for assessing MFN clauses and their compatibility with competition law.
Recent case law concerning across-platform parity clausesThe use of sales platforms for e-commerce has triggered the development of retail-MFN arrangements, which provide an assurance to the platform that the supplier will not sell its products or services at lower prices via another platform. These clauses have caught the attention of competition authorities in Europe in recent cases that provide guidance on the analysis that may be carried out in relation to such clauses.
E-books and online marketplacesOn 12 December 2012 and 25 July 2013, the European Commission adopted decisions accepting commitments from five major publishers and Apple pro-viding for the termination of agency agreements with Apple, the prohibition of restrictions on retailers ability to set prices and an explicit ban on retail-MFN clauses for a period of five years (e-books case, COMP/AT.39847). To counter Amazons low e-book retail prices major publishers together with Apple had planned to jointly convert the sale of e-books from a wholesale model to an agency model and publishers were able to pressure Amazon into converting. Combining the agency model and the introduction of MFN clauses in contracts between Apple and the publishers, the latter retained control over retail prices, which could be maintained at a certain level and Apple was assured that if a retailer other than itself were to offer a lower price for an e-book, the publisher had to match that price in the iBookstore.
The European Commission considered that the MFN clauses had effects similar to resale price maintenance (RPM) clauses, namely facili-tating collusion by increasing price transparency, softening competition between rivals, encouraging pric