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德国
Germany – Distribution agreements
2016年5月24日
- 分销协议
Understanding the interplay between federal and state statutory and common law in the US legal system is important to understanding the regulation of exclusive distribution agreements in the US.
Under the US Constitution all power not specifically reserved for the federal government remains with the states. Federal law has exclusive jurisdiction only over certain types of cases (e.g., those involving federal laws, controversies between states and cases involving foreign governments), and share jurisdiction with the states courts in certain other areas (e.g., cases involving parties that reside in different states). In the vast majority of cases, however, state law has exclusive jurisdiction. Similarly, the doctrine of freedom of contract under US law also directly affects how distribution agreements are regulated in the US.
Furthermore, because a distributor is typically an unaffiliated third party acting on its own account rather than on behalf of the supplier as principal, distribution agreements are subject to greater regulation under US federal and state antitrust law. Such law, among other things, (i) regulates whether and the degree to which a supplier in a distribution arrangement may seek in a contract or otherwise to dictate the price at which the distributor will resell products supplied; (ii) imposes restrictions on suppliers that engage in “dual distribution” (selling product directly as well as through a distributor); and (iii) may limit the suppliers’ ability to sell product to different distributors at a different price. Antitrust law also regulates exclusivity and selective distribution arrangements, as well as distribution relationships in certain industries (e.g., federally: automobile manufacturers and petroleum; at the state level, heavy equipment, liquor and farm equipment industries). Furthermore, distribution agreements often may resemble franchise arrangements, subjecting those arrangements to extensive federal and state regulation.
Under the law of most states (including New York), exclusive distribution exists when a supplier grants a distributor exclusive rights to promote and sell the contract goods or services within a territory or to a specific group of customers. Exclusive rights in a distribution arrangement are often granted by the supplier for the distribution of high quality or technically complex products that require a relatively high level of expertise by the distributor, including staff that is specially training to sell the goods or specialized after-sales repair and maintenance or other services. Distribution agreements differ from commercial agency agreements in several respects. In contrast to a distributor, a commercial agent does not take title to product, does not hold inventory and typically has no contractual liability to the customer (including risk of customer non-payment). Conversely, a distributor, in line with the greater risk of its activities, typically can expect greater upside economically in terms of margins on resale relative to an agent’s profit through earned commissions.
Sub-distributors
Under the law of most states (including New York), a distributor may appoint sub-distributors absent any restrictions to the contrary in the agency agreement. Commercially, the appointment of a sub-distributor may have an adverse effect on the supplier by reducing the supplier’s control over its distribution channel activities or increasing the supplier’s potential liability exposure given the increased number of distributors whose actions may be attributed to the supplier. A supplier that does not manage properly the appointment of sub-distributors may also lose valuable product knowledge with respect to the distributed goods (particularly if the goods are novel or complex in nature). Advantages to sub-distributor appointments for the supplier may include a more effective overall marketing presence with enhanced local market knowledge, a broader geographic scope, a potentially lower costs as a result of the sub-distributors’ expertise and efficiencies, etc.
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Rights and Obligations of the Exclusive Distributor
- Sales organization: suppliers are not required to establish sales organizations in exclusive distribution agreements.
- Sales’ target: there are no mandatory rules under federal law or state law (including New York) generally regarding sales targets in exclusive distribution agreements. However, such provisions are common in exclusive distribution agreements.
- Guaranteed minimum target: minimum sales requirements are common in exclusive distribution agreements. As a commercial matter, a supplier as a requirement to give, or maintain, exclusivity with one distributor, will seek through such requirements to ensure that economically the distributor is performing satisfactorily. Often failure to meet sales targets may entitle a supplier to rescind the exclusivity, terminate the agreement or reduce the portion of the territory to which the exclusivity applies. We note that minimum sales requirements in an exclusive distribution arrangement may, in certain cases, be subject to challenge under antitrust law as having an undue anticompetitive effect by preventing a distributor from purchasing products from a competitive supplier.
- Minimum stock: there are no mandatory rules in federal law or the law of the majority of states (including New York) regarding minimum stock. A supplier may seek to have the distributor agree, contractually, to maintain adequate levels of stock relative to market demands as well as to store the product properly.
- After-sales service: the parties to a distribution agreement are generally free to agree as they deem appropriate with respect to after-sale service regarding products.
- Resale Prices: the Exclusive Distributor is free to fix the resale prices. State law (including New York law) generally does not limit the ability of an exclusive distributor to fix resale prices. […] A supplier’s ability to set resale prices for distributors is subject to limitations under federal and state antitrust law. Many state antitrust laws (including New York’s) closely resemble the federal antitrust laws. However, differences exist such that certain conduct may be found not to violate federal antitrust law but still be found to violate state antitrust law (or vice versa). Because the distributor (contrary to an agent) is acting on its own behalf, an agreement between supplier and distributor to maintain certain prices (or if a distributor is deemed to have been coerced by the supplier to follow certain prices), may be a per se price-fixing violation under federal and state antitrust law. Under federal antitrust law, vertical price-fixing until 2007 had been illegal per se. This per se rule was overturned by the Supreme Court. Horizontal price fixing remains per se illegal under the Sherman Act (see below).
Rights and Obligations of the Supplier
- Exclusive Distributor undertaking to supply: generally, state statutes do not specifically provide that a supplier in a distribution relationship has a duty to supply specific levels of product to a distributor, with such obligations generally be established by contractual provision. However, a supplier does have an implied covenant of good faith and fair dealing toward the distributor under state law generally, which generally requires that a party to a commercial agreement not do anything which injures the right of the other to receive the benefits of the agreement). Under the foregoing, a supplier may be deemed to have an obligation to supply product to a distributor (or be found to have violated the implied covenant of good faith and fair dealing in the event that the supplier, although able, decided not to provide a distributor with product without any other contractual justification for not doing so). However, even where such a duty were found to exist, the quantity and frequency of product supply and other details often remain unclear. To avoid uncertainty, distributors often seek to have a specific provision included in the distribution agreement, providing at least for the supplier to be required to use some degree of effort (e.g., “best efforts,”, “reasonable best efforts” or “reasonable efforts”) to supply product responsive to distributor’s submitted purchase orders. On a related topic, generally a distributor typically is only required to inform the supplier of lower purchase estimates if the distributor undertakes to do so (or undertakes a more general obligation with respect to the market) in the distribution agreement. However, even if the supplier is not, under an exclusive distribution agreement, required to supply the distributor with product, the supplier may still be subject to a contractual or common law obligation not to sell to third parties in the territory. New York courts held that suppliers that make direct sales to customers in the territory under an exclusive distribution agreement have breached their duties to the exclusive distributor.
- Retention of title: typically, in sales transactions on credit in the US, title is passed at the moment of initial sale. The buyer typically grants the supplier a security interest in the goods purchased, which if proper perfected under state law, affords the supplier with a priority position relative to other creditors with respect to the products provided (inventory) in the event of non-payment and enforcement.
Construction defects warranty
The law of “products liability” in the US is based on the law of torts. Under New York law, in cases of where an end user is injured by a defective product which was sold by the distributor under a distribution agreement, the end user generally is able to sue the distributor and the supplier of the product under one or more of the following theories: (i) strict liability; (ii) negligence; or (iii) breach of warranty. The usual theory of recovery against a distributor is strict liability. Under a strict liability theory, a supplier or distributor that sells a defective product while engaged in its normal course of business shall be liable for injuries it causes to customers, regardless of privity, foreseeability or the exercise of due care. Product liability cases also are brought under breach of warranty claims. Breach of warranty claims can be based on express warranties (e.g., from advertisement or a product label) and on implied warranties (typically, warranties of merchantability and fitness for a particular purpose under the provisions of the Uniform Commercial Code as adopted by the states). Lastly, negligence claims brought by plaintiffs are based on the improper conduct of the defendant, whether supplier or distributor or other participant in the distribution chain, with respect to the manner of distribution or care of the product sold (examples include improper storage or transport).
Under New York law, exceptions based on misuse, neglect or abuse by the suing party generally apply as defenses against liability under theories of strict liability, negligence or breach of warranty.
The supplier and distributor can allocate third-party liabilities (e.g., potential losses to be paid to plaintiffs in a products liability law suit) and related attorneys fees as between themselves through warranty and other indemnification provisions. Parties to a distribution agreement in the US often seek to put in place such re-allocation provisions not only because of potential liability resulting from a final, unfavorable judgment, but also because of the sizeable legal fees that litigants in the US often incur. In this regard, we note that in the US litigation costs are generally born by all of the litigating parties and not by the losing party as is common in many other countries. Such provisions may include indemnification provisions relating to product liability or trademark infringement claims brought by third parties, limitations on liability provisions (based on monetary caps and exclusions as to the types of damages that may be recovered, such as consequential, punitive, special and indirect damages) and disclaimers in respect of express or implied warranties that may otherwise apply under state law applicable to the distribution agreement.
Exclusivity
Exclusive-dealing provisions – under which the distributor undertakes not to distribute competing products in the territory – are quite common in distribution agreements. However, although it is not easy for a plaintiff to prevail, such a provision may be subject to challenge as an unlawful restriction on competition under federal and state antitrust law, typically under the following federal antitrust laws: (i) section 1 of the Sherman Act, which prohibits contracts “in restraint of trade;”; (ii) section 2 of the Sherman Act, which prohibits “attempt[s] to monopolize” and monopolization; (iii) section 3 of the Clayton Antitrust Act of 1914 […], which prohibits exclusivity arrangements that may “substantially lessen competition” or tend to create a monopoly; and, finally, (iv) section 5 of the Federal Trade Commission Act […], which prohibits “[u]nfair methods of competition.” In deciding these cases, typically courts apply the “rule of reason analysis” under which the exclusive dealing arrangements is analyzed considering a host of factors, including: (a) the defendant’s market power; (b) the degree of foreclosure from the market and barriers to entry; (c) the duration of the contracts; (d) whether exclusivity has the potential to raise competitors’ costs; (e) the presence of actual or likely anticompetitive effects; and (f) legitimate business justifications.
当进入新市场时，有不同的经销策略可供选择（1）在零售，汽车和批发贸易中，经销协议相当普遍（2）在国际经销协议中，双方可以选择适用的法律（3）无论是否被选择，适用的法律仍可能含有令人不快的条款，如德国法律下的商誉赔偿（4）本文将会展示如何可以避免这种令人不快的条款- 参考德国联邦法院（5）的2016年最新判决。
一．进入新市场
进入新市场时，存在不同的结构。选择哪一个取决于所期望的策略：让自己的员工直接销售，或者通过销售商，特许经营商，佣金代理商等销售代理间接销售贴牌产品，或者在许可范围内制造和销售第三方产品。有关德国销售的详细信息，请参阅Legalmondo上发布的“德国经销协议”。
二.经销协议
在零售（特别是电子，化妆品，珠宝，一些时尚用品），汽车和批发贸易中，分销系统是特别常见的 – 无论销售中介是否是指“分销商”，“中间商”，“经销商”，“专业零售商”，“特许经销商”，或“授权经销商”。经销商是个体经营的、独立的承包商，不断以自己的名义和自己的账户出售和推广产品。他们承担销售风险，反之亦然 – 制造商的利润相当低。经销商受到的保护通常较商业代理人少（在欧盟内，1986自营商业代理人的指令适用于欧盟成员国的各自的国家法律。）与销售代理人的协议相反，经销协议受到反垄断法的限制。原则上限制竞争是被禁止的，除非在第十一条TFEU（“欧洲联盟条约”）下它们不明显地限制竞争。有关在线销售的详细信息，请参阅Legalmondo上发布的“限制电子商务经销商”。
三．国际经销和法律选择
当制造商在国际范围内销售其产品或服务时，制造商和经销商的国家法律“碰撞”。为了解决冲突，创造法律确定性，当事人往往会选择适用的法律。通常，每个当事人都会试图适用它“自己的”，也许不是更有利的，但至少在国内外众所周知的法律。或者，双方可以就一个“中立的”，第三方国家的法律达成一致——比如在意大利制造商和德国经销商之间适用瑞士法，并且合同标准方面也有更多的自由。即使选择了法律，在国际贸易中也会有令人不悦的意外——正如“不同国家，不同风俗”的说法一样。
- 首先，因为适用法的选择可能无效——例如，在一些南美国家和中东地区。
- 其次，因为可能会有国际强制性规定(“overriding mandatory provisions”, “lois des police” or “Eingriffsnormen“) ，其对维护国家公共利益具有重要意义以至于“凌驾于”法律选择之上即尽管有其他可选择的有效力的法律其仍被适用。
- 再者，因为所选择的法律可能包含令人不悦的意外，比如德国的经销商商誉损害赔偿。
- 四．“德国”经销商赔偿
此外，德国法律可能会制造意外，特别是以经销商在终止时的善意赔偿请求为形式。虽然在德国法律下没有明确的经销商规则，但有广泛的判例法，并且经销商也适用不同的代理规则，如果以下两种情况得到满足：
经销商
- 整合到供应商的销售组织中；以及
- 在合同终止或期间有义务（由于协议或事实）转发客户数据
如果允许的话，经销商基本上也有权要求终止时的商誉补偿（在与代理人相同的条件下）。一般来说，这种商誉补偿的计算是基于经销商在过去一年中的新客户或经销商已经显著增加业务的已有客户所带来的利润。细节不同；德国法院接受不同的计算方法。
五、如何避免“德国”的经销商商誉赔偿
长期以来，经销商在德国以外但在欧洲经济区（“EEA”）以内经营，是否可以提前排除（即在终止合同前）在德国法律以及相似的代理法下（德国商法典.89b节）的经销商商誉赔偿，这一问题一直存在争议。
这一问题在提交德国联邦法院前被审查（第25／02／2016号决定，参考文献第七号ZR102/15）。被告为在德国成立的电气工业设备制造商。原告为在瑞典和其他欧洲经济区国家活动的经销商。由德国法支持的经销协议；任何签约后的补偿或者薪酬被排除。在被告终止协议后，原告作为经销商要求商誉赔偿。原告在下级法院没有成功，但德国联邦法院现在决定支持原告（并且，法兰克福高级地方法院在06／02／2016，第11号U 136/14（Kart）上采取同样的做法）。
裁决的重点是关于商誉赔偿条款的领土范围（德国商法典89b节）。根据该条款，代理人的商誉赔偿不能提前排除。在已有的判例法中，这一规定可能类似地适用于经销商（见上文）。然而，对于如果经销商在德国范围外，在欧盟/欧洲经济区内经营是否仍被强制支付商誉损害赔偿这一问题存有争议。德国联邦法院如今已经确认——尤其争论于（1）代理法的历史发展和（2）其保护代理商以及经销商的目的：在其他欧洲经济区国家而非德国经营的经销商应当和在德国经营的经销商一样受到保护；相关条款的目的是防止由于对制造商/供应商经济上的依赖而导致的不利的协议。最后，联邦法院认为没有必要向欧盟法院提交这一问题，因为它不属于《1986自营商业代理人指令》的范围。
新的判决与现行判例法相一致：德国联邦法院很可能会继续以此类推向经销商实施代理法。
合同惯例和未来合同起草的五个实用技巧：
1．商誉补偿是一种仅在销售协议出现之后的费用，但应事先考虑——并且，如果此费用可被避免或事先另行规定（例如：规定入门费）。
2.如果经销商在EEA欧洲经济区以外经营，商誉赔偿的索赔随时可被排除，例如：已经存在于经销协议中可被排除（德国商法典92c节；慕尼黑区域法院，11 / 01 / 2002决定，参考号为23 U 4416 / 01）
- 如果经销商在欧洲经济区内经营，适用德国法律并且满足上述两个条件，经销商的商誉损害赔偿的索赔不得在协议终止之前被排除。
- 经销商的德国商誉赔偿可以事先被排除，尤其当当事人:
(i) 排除转移客户数据；或
(ii) 强迫制造商封锁，停止使用，如有必要，在协议终止时删除此类客户数据（德国联邦法院，第05／02／2015号决定，参考第七号315/13文献）；或
(iii) 选择另一法律（因此，导致另一管辖权或仲裁）。
- 或者，当事人可以通过约定“入门费”(“Einstandszahlungen”)来减轻商誉赔偿的索赔——甚至可以推迟到协议终止，然后抵消对商誉赔偿的索赔。然而，此类入门费不可以不合理地过高（联邦法院，第24／02／1983号决定，参考第I ZR 14/81文献），其必须对应于回报值。例如：一个特别高的经销折扣或者一个长期协议期限（慕尼黑高等地区法院，04 / 12/1996的决定，参考号为7 U 3915/96，Saarbrücken高等地区法院，30 / 08 / 2013的决定，参考号为1 U 161/12）。简而言之，制造商必须证明，即使没有入门款，双方也不会同意更高的手续费（正如德国联邦法院2016年7月14日所决定的，参考第VII ZR 297/15文献）。b
The Court of Justice of the European Union (“CJEU”) has issued a new ruling on the international scope of the Commercial Agency Directive (86/653/EEC of 18 December 1986). The new decision is in line with the rulings of
- the CJEU in the Ingmar case (decision of 9 November 2000, C-381/98, goodwill indemnity mandatory where the agent acts within the EU) and Unamar (decision of 17 October 2013, C-184/12, as to whether national agency law is mandatory where exceeding the Commercial Agency Directive’s minimum protection) and
- the German Federal Supreme Court of 5 September 2012 (German agency law as mandatory law vis-à-vis suppliers in third countries with choice-of-court clause).
The question
Now, the CJEU had to decide whether a commercial agent acting in Turkey for a supplier based in Belgium could claim goodwill indemnity on the basis of the Commercial Agency Directive. More specifically, the question was whether the territorial scope of the Commercial Agency Directive was given where the commercial agent acts in a third country and the supplier within the EU – hence opposite to the Ingmar case.
The facts
According to the agency contract, Belgian law applied and the courts in Gent (Belgium) should be competent. Belgian law, transposing the Commercial Agency Directive, provides for a goodwill indemnity claim at termination of the contract (and, additionally, compensation for damages). However, the referring court considered that the Belgian Law on Commercial Agents of 1995 was self-restraining and would apply, in accordance with its Art. 27, only if the commercial agent acted in Belgium. Otherwise, general Belgian law would apply.
The decision
The CJEU decided that the parties may derogate from the Commercial Agency Directive if the agent acts in a third country (i.e. outside the EU). This has here been the case since the agent acted in Turkey.
The decision is particularly noteworthy because it – rather by the way – continues the CJEU’s Ingmar ruling under the Rome I Regulation (I.). In addition, it indirectly confirms sec. 92c of the German Commercial Code (II.) – which allows the parties to a commercial agent agreement governed by German law to deviate from the generally mandatory agency law if the commercial agent is acting outside the European Economic Area (“EEA”). Finally, it provides legal certainty for distribution outside the EEA and illustrates what may change after a Brexit as regards commercial agents acting in the United Kingdom (III.) – if the EU and the United Kingdom do not set up intertemporal arrangements for transition.
For details, please see the article by Benedikt Rohrßen, Zeitschrift für Vertriebsrecht 2017, 186 et seq. (“Ingmar reloaded – Handelsvertreter-Ausgleich bei umgekehrter Ingmar-Konstellation nicht international zwingend”).
Manufacturers of brand-name products typically aim to ensure the same level of quality of distribution throughout all distribution channels, offline and online. To achieve this aim, they provide criteria how to resell their products. With the increase of internet sales, the use of such criteria has been increasing as well.
A total ban of online sales to end consumers within the EU is, however, hardly valid because online sales are considered as passive sales (cf. Guidelines on Vertical Restraints 2010, para. 52). Restrictions below a total ban are, however, commonplace (for examples, see the post “eCommerce: restrictions on distributors in Germany”). Yet, it is still not clear how far such restrictions are permissible.
For example, the luxury perfume manufacturer Coty’s German subsidiary Coty Germany GmbH has set up a selective distribution network and its distributors may sell via the Internet, under the following conditions. They shall
- use their internet store as “electronic store window” of their brick and mortar store(s), thereby maintaining the products’ character as luxury goods, and
- abstain insofar from engaging third parties as such cooperation is externally visible.
The court of first instance decided that tsuch ban of sales via third party platforms was an unlawful restriction of competition under art. 101 Treaty on the Functioning of the European Union (“TFEU”), namely a hardcore restriction under article 4 lit. c Regulation (EU) No. 330/2010 (Vertical Block Exemptions Regulation or “VBER”). The court of second instance, however, does obviously not see the answer that clear. Instead, the court requested the Court of Justice of the European Union (CJEU) to give a preliminary ruling on how European antitrust rules have to be interpreted, namely article 101 TFEU and article 4 lit. b and c VBER (decision of 19.04.2016, ref. no. 11 U 96/14 [Kart]) – see the previous post “eCommerce: restrictions on distributors in Germany”.
On 30 March 2017, the hearing took place before the CJEU:
- Coty defended its platform ban, arguing it aimed at protecting the luxury image of brands such as Marc Jacobs, Calvin Klein or Chloe.
- France – seat of several luxury brands such as Louis Vuitton, Chanel and Christian Dior –supported Coty.
- The distributor instead argued that established platforms such as Amazon and eBay already sold various brand-name products, e.g. of L’Oréal. Accordingly, there was no reason for Coty to ban the resale via these marketplaces. Germany also supported this view by emphasizing the importance of online platforms for small and medium-sized enterprises (where, however, the share of distributors using online marketplaces is 62% much higher than in all other Member States, see the Staff Working Document, „Final report on the E-commerce Sector Inquiry“, para. 452).
- Luxembourg – the seat of Amazon – considers a general platform ban to be disproportionate and therefore as anti-competitive (cf. Reuters’ article here).
Interest in the outcome of the Coty case is widespread, as the active participation of the various EU Member States illustrates (in addition to the abovementioned countries, also Italy, Sweden, the Netherlands and Austria). Simply put, the question is whether owners of luxury brands may generally or at least partially ban the resale via internet on third-party platforms.
Indications on how the court may decide have just appeared on 26 July 2017, with the Advocate General giving his opinion. The Advocate General proposes that the CJEU answers the questions referred to the court as follows:
“(1) Selective distribution systems relating to the distribution of luxury and prestige products and mainly intended to preserve the ‘luxury image’ of those products are an aspect of competition which is compatible with Article 101(1) TFEU provided that resellers are chosen on the basis of objective criteria of a qualitative nature which are determined uniformly for all and applied in a non-discriminatory manner for all potential resellers, that the nature of the product in question, including the prestige image, requires selective distribution in order to preserve the quality of the product and to ensure that it is correctly used, and that the criteria established do not go beyond what is necessary.
(2) In order to determine whether a contractual clause incorporating a prohibition on authorised distributors of a distribution network making use in a discernible manner of third-party platforms for online sales is compatible with Article 101(1) TFEU, it is for the referring court to examine whether that contractual clause is dependent on the nature of the product, whether it is determined in a uniform fashion and applied without distinction and whether it goes beyond what is necessary.
(3 The prohibition imposed on the members of a selective distribution system who operate as retailers on the market from making use in a discernible manner of third undertakings for internet sales does not constitute a restriction of the retailer’s customers within the meaning of Article 4(b) of Commission Regulation (EU) No 330/2010 of 20 April 2010 on the application of Article 101(3) on the Treaty of the Functioning of the European Union to categories of vertical agreements and concerted practices.
(4) The prohibition imposed on the members of a selective distribution system, who operate as retailers on the market, from making use in a discernible manner of third undertakings for internet sales does not constitute a restriction of passive sales to end users within the meaning of Article 4(c) of Regulation No 330/2010.”
The Advocate General’s complete opinion can be found at CJEU’s website here.
The updated overview of the procedure can be found at CJEU’s website here.
Practical Conclusions
- The Coty case is extremely relevant to distribution in Europe because more than 70% of the world’s luxury items are sold here, many of them online now.
- The general ban to use price comparison tools shall be anti-competitive – according to the Bundeskartellamt, as confirmed by the Higher Regional Court of Düsseldorf on 5 April 2017. The last word is, however, still far from being said – see the post “Asics’ Distribution of Sporting Goods: Ban of Price Comparison Tools anti-competitive & void?!?”. Besides, also the Coty case’s outcome may influence how to see such bans.
- The Coty case is setting the course for future Internet sales. Depending on the decision of the CJEU, manufacturers of luxury or brand-name products can continue to ban the use of marketplaces like Amazon or eBay for the distribution of their products – or not any more or only under certain conditions. If the court follows the Advocate General’s conclusions, such platform bans appear possible, provided that the platform ban depends “on the nature of the product, whether it is determined in a uniform fashion and applied without distinction and whether it goes beyond what is necessary” (see above).
- For further trends in distribution online, see the EU Commission’s Final report on the E-commerce Sector Inquiry and details in the Staff Working Document, „Final report on the E-commerce Sector Inquiry“.
- For details on distribution networks and antitrust, please see my article „Plattformverbote im Selektivvertrieb – der EuGH-Vorlagebeschluss des OLG Frankfurt vom 19.4.2016“, in: Zeitschrift für Vertriebsrecht 2016, p. 278–283.
Manufacturers of brand-name products typically aim to ensure the same level of quality of distribution throughout all distribution channels. To achieve this aim, they provide criteria how to resell their products. With the increase of internet sales, the use of such criteria has been increasing as well.
Best example: Asics. Until 2010, the German subsidiary Asics Deutschland GmbH supplied its distributors in Germany without applying special criteria. In 2011, Asics launched a selective distribution system called “Distribution System 1.0“. It provided, inter alia, for a general ban on distributors to use price comparison tools in online sales:
“In addition, the authorized B … distributor is not supposed to … support the functionality of price-comparison tools by providing application-specific interfaces (” API”) for these price comparison tools.” (translated]
The German Federal Antitrust Authority (“Bundeskartellamt”) has determined by decision of 26 August 2015 that the ban of price-comparison tools against distributors based in Germany was void because it infringed Article 101 (1) TFEU, sec. 1 Act on Restraints of Competition (see the 196-page decision here). Reason given was that such ban would primarily aim at controlling and limiting price competition at the expense of consumers. Asics, instead, filed a complaint before the Higher Regional Court of Düsseldorf to annul the Bundeskartellamt’s decision. Asics argued that this ban was a proportionate quality standard within its “Distribution System 1.0“, aiming at a uniform product presentation.
Now the Higher Regional Court of Düsseldorf on 5 April 2017 confirmed the Bundeskartellamt’s decision that within selective distribution systems the general ban to use price comparison tools was anti-competitive and therefore void (ref. no. VI-Kart 13/15 (V); see also the Bundeskartellamt’s press release in English):
- In particular, the ban of price comparison tools was not exempt from Art. 101 (1) TFEU by way of teleological interpretation (“Tatbestandsreduktion”). According to the court, it was not necessary in order to protect the quality and the product image of the Asics brand (same argumentation as the Higher Regional Court of Frankfurt in its judgment of 22.12.2015, ref. no. 11 U 84/14 regarding Deuter’s functional back-up bags; the Federal Supreme Court will, however, still decide on this, ref. no. KZR 3/16). The court declared that the ban was intended to restrict the buyers, arguing that distributors would be restricted in entering into a price competition with others. The presentation of products in price comparison tools would not damage the quality or brand of Asics products. It would neither give a “flea market impression“, ostensibly also not from the simultaneous presentation of used products. Also, the ban of price comparison tools would not solve the problem of “free-riding“. In any event, the general ban of price comparison tools was not necessary and therefore unlawful.
- The ban would also not be exempt under the Vertical Block Exemption Regulation. Instead, the court argued, the ban would limit passive sales (over the internet) to end customers, contrary to Art. 4 (c) Vertical Block Exemption Regulation (referring to the CJEU decision in the case of Pierre Fabre, 13 October 2011, ref. no. C-439/09). The “equivalence principle” (i.e. restrictions for offline as well as online sales should not be identical, but functionally equivalent) would not apply as there were no comparable functions to price comparison tools in the stationary trade.
- Finally, the ban would also not benefit from the individual exemption under art. 101 (3) TFEU (“efficiency defence”).
Conclusions:
- According to the Higher Regional Court of Düsseldorf, manufacturers might not generally prohibit their distributors from using price comparison tools. At the same time, the court also refused to grant leave to appeal against its decision – which, however, can be challenged separately by way of an appeal (sec. 74, 75 Act on Restraints of Competition).The future development of criteria limiting distributors in reselling online remains open, especially as (i) the Coty case is pending at the CJEU (see below) and (ii) the EU Commission in its sector enquiry into e-commerce currently appears to favour manufacturers of brand-name products (see below).
- The court has explicitly left open – arguing that they were not relevant for its decision – whether
- the ban of search engines is anti-competitive (para. 44 et seq. of the decision);
- the general ban of third-party platforms is anti-competitive (para. 7) – although Asics’ “Distribution System 1.0” also banned third-party platforms such as Amazon or eBay.
- Whether and how manufacturers of luxury or brand-name products can continue to ban their distributing via Amazon, eBay and other marketplaces in general in the future will likely be decided by the CJEU in the coming months – in the case of Coty (see our post “eCommerce: restrictions on distributors in Germany”) where a hearing has been just recently been held end of March 2017.
- Without prejudice to the Coty case, the EU Commission has however, in its sector enquiry into e-commerce of May 2017, declared that
- “marketplace bans do not generally amount to a de facto prohibition on selling online or restrict the effective use of the internet as a sales channel irrespective of the markets concerned …,
- the potential justification and efficiencies reported by manufacturers differ from one product to another …”,
- (absolute) marketplace bans should not be considered as hardcore restrictions within the meaning of Article 4(b) and Article 4(c) of the VBER…,
- the Commission or a national competition authority may decide to withdraw the protection of the VBER in particular cases when justified by the market situation”
(41–43 Final Report on the e-commerce sector inquiry).
Hence, on the basis of the EU Commission’s most recent position, there is room for arguments and creative contract drafting since even general marketplace bans can be compatible with the EU competition rules. However, the courts may see this differently in the single case. Therefore, especially the CJEU with its Coty case (see above) will likely bring more clarity for future online distribution.
在分销合同中，制造商和供应商倾向于限制分销商在线销售商品(I.)。尽管这种做法相当普遍，但反垄断法对于是否有和有哪些限制得到允许并没有建立明确的规定(II.)，特别是有关于在选择性分销网络上销售奢侈品的情况(III.).。
如今，上述问题将决定于欧盟司法法院（CJEU）对互联网上的销售限制的所做出的初步裁决（IV）。以此同时，出现一个问题：如何处理转售限制？(V.)。
电子贸易销售限制
电子贸易不断发展–在全球并且也在德国，它约占总零售额的10%（据“Handelsverband Deutschland” [德国贸易协会]2016年的数据）。同样，知名品牌制造商也试图利用电子商务的市场机遇，同时努力维护自己品牌的形象。因此，制造商对分销商进行了若干限制，特别是：
- 全面禁止互联网销售，
- 禁止通过第三方线上平台销售（特别是“市场”），
- 经营一个实体店作为因特网销售的先决条件，
- 双重定价，或
- 互联网销售的质量标准。
对网上转售限制的反垄断限制
然而，反垄断当局最近对这些限制进行了审查，并在电子商务中实施反垄断规则。因此，有相当多的法院判决和反垄断当局的决定，赞成和反对这种限制的都有，例如：
- 包（“Scout”第三方平台），
- 运动（“ASIC”价格比较，标志条款，“阿迪达斯”第三方平台），
- 电子（“森海塞尔”和“卡西欧”均为第三方平台），
- 奢侈化妆品/香水（“科蒂”价格比较，第三平台），或
- 软件（“谷歌”要求制造商预装应用程序，参见欧洲联盟委员会2016年4月20日的新闻稿）。
现在，Coty德国奢侈化妆品案已达到欧洲水平。
如今的科蒂案
本案的事实如下:供应商（Coty Germany GmbH）成立了一个选择性分销网络。分销商可在以下限制下通过互联网销售。它们应:
- 利用它们的网络商店作为其实体店的“电子商店窗口”，从而维持产品的奢侈品性质，以及
- 禁止与第三方合作，因为这种合作是对外可见的。
当事人的意图：供应商要特别实施最后的限制，阻止一个通过亚马逊的市场来销售供应商商品的分销商(Parfümerie Akzente GmbH)。很明显，分销商打算摆脱这种限制。
一审法院，法兰克福区法院，根据《欧洲联盟运作条约》（“TFEU”）第101条，裁决认为通过第三方平台的销售禁令，即Regulation（EU）第330/2010（坚决豁免规定或“VBER”）第四条（C）款。然而，二审法院，法兰克福高级地方法院，显然没有给出明确的答案。因此，法院已要求欧盟法院（CJEU）对欧盟反垄断规则即《欧洲联盟运作条约》第101条和第4条（b）款和（c）款（ 19.04.2016, ref. no. 11 U 96/14 [Kart]的决定)如何解释作出初步裁决，
提交给欧盟法院的问题
欧盟司法法院已经为“科蒂德国”立案（reference no. C-230/16）。以下是欧盟司法法院需要回答的四个问题：
- 选择性的分销网络的目标在于销售奢侈品以及确保商品有“奢侈的形象”以保 持竞争，这与《欧洲联盟运作条约》第101条第一款可以共存吗？
如果第一个问题得到肯定的回答：
- 在具体案例中，如果一个在零售业经商的选择性分销网络的成员被广泛禁止在公开的第三方线上平台进行网络销售，无论生产商的质量是否合法，其竞争性是否与《欧洲联盟运作条约》第101条第一款共存？
是否欧盟法第330 / 2010第四条（b）款可被解释为，强制禁止在零售业经商的选择性分销网络的成员在公开的第三方线上平台进行网络销售，限制了零售商的消费群体有关于物品的选择？
是否欧盟法第330 / 2010第四条（c）款可被解释为，强制禁止在零售业经商的选择性分销网络的成员在公开的第三方线上平台进行网络销售，限制了向终端用户通过物品的消极销售？
如今如何对待限制
在德国，关于网上销售的禁令有一些判例法，有些判决是赞成的，有些判决是反对的。网络销售的限制最近也被德国联邦卡特尔局所审查（联邦反垄断局），这种审查对反对这种限制有很关键的作用，包括对在第三方平台销售的限制。
然而德国最高法院的判决仍旧下落不明。关于供应商和分销商是否可以有效地达成一致特别是对于奢侈品方面的问题也至今没有一个清楚的答案。欧盟司法法院的初步判决应该给予这些问题清晰的回复。
直到欧盟司法法院初步判决下来，目前的法律现状应该特别建立在纵向限制标准2010（其不具备法律质量并且也不约束法庭，而是规定了指导欧洲委员会对纵向协议进行评估的原则，从而通过原则约束欧洲委员会本身）上：
- 全面禁止网络销售很难成立因为网络销售被认为是被动销售（参见纵向限制标准2010，第52段）。几乎没有一个批准是限制网络商店语言的因为这并不能改变这种销售的被动性质（参见纵向限制标准2010，第52段）。对互联网销售的营业额的限制也是如此。
- 然而，允许必须是，特别是
- 对电子商务平台设计的定性要求（不造成全面禁止和不限制语言的使用）
- 对在独占区域，或对供应商的独家客户群，或由供应商分配的另一个买家积极销售的限制（VBER第四条b款（i）项），比如在第三方网站上的区域性横幅（参见纵向限制标准2010，第53段）。
- 成为供应商选择性分销网络成员的一般定性限制，例如要求分销商有一个或者多个实体店或陈列室（纵向限制标准2010，第54段，176）
欧盟法院的判决将更加清晰——Legalmodo会持续更新科蒂德国案和其他对于网络分销有可能的影响。
Agency agreements
Agency Agreements are regulated by the Agency Agreements Law 12/1992 (which has transposed Directive 86/653/EEC into Spanish law).
The main characteristic of the agency agreement is that through this an individual or a legal entity (the Agent) agrees with the Principal on a continuous or regular basis and against payment of a consideration to be agreed, to promote commercial acts or transactions for the account of such Principal not assuming the risk and hazard of such transactions, unless otherwise agreed.
Commercial relationship: Agents are independent intermediaries who do not act in their own name and behalf, but rather for and on behalf of one or more Principals.
There is no labour but commercial relationship between the Principal and the Agent.
It is presumed that the agency relationship is as a matter of fact. On the contrary, there is a labour relationship when the agent in not entitled to organize by his own his business activity nor to fix its own timetable.
Agents Obligations: Agents must, on his own or through his employees, negotiate and, if required by contract, conclude on behalf of the Principal, the business and transactions he is instructed to handle. Agents are subject to a number or obligations, including the following:
- An agent cannot outsource his activities unless expressly authorized to do so.
- An agent is authorized to negotiate agreements or transactions included in the agency agreements, but can only conclude them on behalf of its principal when expressly authorized to do so.
- An agent may act on behalf of several principals, unless the related goods or services are similar or identical, in which case express consent is required.
Main obligations of the Principal are:
- To act loyally and in good faith in its relations with the agent.
- To provide the agent with all the documentation and the information which he may need to develop his activity.
- To pay the agreed consideration.
- To accept or reject transactions proposed by the agent.
The agency agreement must always be remunerated/paid. The consideration may consist of a fixed amount, a commission or a combination of both.
Indemnity: the agent is entitled to:
- A damages and prejudices indemnity if the contract is terminated by the Principal without cause (not to apply when the termination takes place at the end of the agreed Term).
- A compensation for clientele/goodwill if the contract is terminated without cause or terminated through expiration of the agreed term provided the agent has contributed with new clients to the Principal business or increased the transactions with the Principal client portfolio and provided that the Principal can benefit in the future of such activity from the agent. Such compensation cannot exceed the average of the payments/commissions received by the agent throughout the last five years or throughout the contract effectiveness if the duration has been below five years.
Non Competition: non-competition provisions (i.e., provisions restricting or limiting the activities that can be carried out by the agent once the agency agreement has been terminated) have a maximum duration of two years from the termination of the agency agreement and must be: agreed in writing, limited to the geographical area where the agent has been trading and related to goods or services object of the agency agreement.
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Distribution / Concession agreements
There is not a specific regulation for distribution agreements; therefore the Civil Code general contract regulation applies. Through this type of contract the Distributor undertakes toward the Principal – on a continuous or regular basis and against payment of a consideration to be agreed – to promote commercial acts or transactions for the account of such Principal, but assuming the risk and hazard of such transactions.
In practice, distribution agreements are often confused with agency agreements. Nevertheless, they are different and have distinct regulations and characteristics.
- Under a distribution agreement, the distributor undertakes to purchase goods belonging to the other party for resale. While under the agency agreement the agent is paid a commission but not purchases and resales.
- Under the distribution agreement the Distributor assumes the entire risk of the transaction while under the agency agreement the risk remains with the Principal.
Commercial relationship: under the distribution agreement the link is completely commercial; the risk of a labour relationship being declared is much lower than under the agency agreement due to the fact of the Distributor higher independency and autonomy.
The distribution agreement may be granted under an exclusive or non-exclusive basis. The exclusive may work on both sides: the distributor could be contractually liable to only work with the principal (or not) and the Principal could be contractually bound to only work with the distributor on a given territory.
Parties Obligations: while the Agency Agreement is governed through the Agency Agreements Law (which includes mandatory rules), Distribution Agreements are subject to the Civil Code and therefore the “freedom principle” applies in order to set forth the parties obligations regime.
The Distributor is not paid by the Principal. He makes his benefit through the difference between purchase and sale price.
Indemnity: although the clientele/goodwill indemnity only applies to the agency agreements, the Supreme Court has in various sentences decided that the Distributor could have the right to be paid such an indemnity provided similar provisions as those stated at the Agency Agreements law (see above) where met on an analogy basis.
Non Competition: non-competition provisions (i.e., provisions restricting or limiting the activities that can be carried out by the distributor once the distributor agreement has been terminated) are valid provided that they are expressly agreed through the agreement and its reasonability can be defended and sustained (in terms of territory, term and consideration).
Commission agency agreements
Through this type of contract, the commission agent undertakes to perform or to participate in a commercial act or agreement on behalf of the Principal.
Commission agents may act:
- In their own name, acquiring rights against the contracting third parties and vice versa or
- On behalf of their principal, who acquires rights against third parties and vice versa
Obligations of commission agents:
- To protect interests of the Principal as if they were their own and to perform their engagement personally. Commission agents may delegate their duties if authorized to do so and may use employees at their own liability.
- To account for amount that they have received as commission, to reimburse any excess amount and to return any unsold merchandise.
- Commission agents are barred from buying for their own account or for the account of others, without the consent of their principal, the goods that they have been instructed to buy.
Commission: The principal undertakes to pay a commission to the commission agent, usually linked and only accrued if the Transaction is closed.
Differences and similarities between agency agreements and commission agency agreements.
- Main similarity: In both cases, and individual or legal entity undertakes to pay another compensation for arranging a business opportunity for the former to conclude a legal transaction with a third party, or for acting as the former’s intermediary in concluding the transaction.
- Main difference: Agency agreements involve an engagement on a continuous or regular basis, whereas commission agency agreements involve occasional engagements.
Franchise Agreements
Franchise Agreements are governed through (i) the Law 7/1996, of January 15, regulations retail trade, regarding the basic conditions for the franchise activity and creating the Register of Franchisors; (ii) Royal Decree 201/2010, of February 26, regulating the exercise of the commercial activity under a franchise arrangement and the communication of information to the Register if Franchisors; and (iii) Royal Decree 378/2003, which refers to Regulations (EC) No. 2790/1999, of December 22, 1999, relating to the application of Article 81(3) of the Treaty to certain categories of vertical agreements. Through the Franchise Agreement the franchisor grants a right to, and imposes an obligation on, its individual franchisees, for a specific market, to pursue the business or commercial activity (sale of goods, services or technology) previously carried out by the Franchisor with sufficient experience and success, using the knowhow, system, trademarks, IP rights etc. defined by the Franchisor.
The Franchise Agreement entitles and obliges the Franchisee to use the brand name and/or trade or service mark for the goods and/or services, the know-how and the technical and business methods, which must be specific to the business, material and unique, the procedures and other intellectual property rights of the Franchisor, backed by the ongoing provision of commercial and technical assistance under, and during the term of, the relevant franchising agreement between the parties, all of the above regardless of any supervisory powers conferred on the Franchisor by contract.
Formalities: In Spain, prior to start franchising activities, Franchisors must register in a public administrative Register of Franchisors.
Although the very short regulation of the Franchise Agreement leaves ground for the freedom principle, usually the franchisee pays a royalty to the Franchisor (commonly linked to the volume of sales but could also be a fix royalty), and a publicity royalty (so as to contribute to the Principal publicity cost of which the franchisee benefits).
Non Competition: throughout the life of the agreement, non-competition clauses (reciprocally) are common and admissible; after the termination of the contract, the Spanish Court usually admits the validity of the one year non-competition clause but limited to the location where the franchise had been working.
用于约束解决双方争议的方式、规定相关适用法律的契约条款通常被称为“午夜条款”。在许多契约案例中，此条款通常被书写在契约的最末几段，以至于在谈判即将结束时才被讨论，通常此时已是深夜，双方都已精疲力竭，决定在契约上签字。
以上情况通常有两种：第一，在仓促、不谨慎的情况下作出决定。双方相信已在契约重要的问题上达成协议，所以对如何解决争议不够重视。
第二种情况则是相反：双方就管辖权所属法院及适用法律产生矛盾。双方都坚决地要求在自己的国家实施管辖权并适用该国法律。但是，此情况大多因为原则问题和国内外的标准差别问题，而不是因为双方了解问题的实际重要性。
上述两种情况都是棘手的，因为双方都将自己置于风险中：可导致做出错误的决定或无奈地妥协，并且可能会使将来采取的法律行动无效。
所以，必须足够重视并慎重地考虑该条款：通过阅读以下几点思考，牢记在慎重选择契约的司法管辖权和适用法律的同时，保留对另外一篇主题与本文主题同样重要的文章——对仲裁结果进行预知的讨论。
1）中国法官不再是禁忌
在过去很长一段时间，外国人害怕与中国法官接触，因为中国法官曾大多是来自其他公共管理部门的国家公务员。在他们眼中，中国法官被政治化，公正性受到质疑而且一般相当无能。但是今天，至少在被国际投资覆盖多年的城市，情况已经发生变化：司法水平有了明显提高，可独立计算诉讼成本，初审耗时很短（约6个月），并且很大程度上判决公正，特别是在得到合格律师辩护的情况下。因此，考虑到未来可能发生的情况及争议，在起草契约时提出中国司法管辖权是非常必要的。
2）资产在何处？
判决执行的地点是决定司法管辖权最重要的因素。在起草契约时预见在商业关系中可能产生的纠纷，以及将在哪里执行判决（中国或是意大利），都是十分必要的。
在大多数情况下，中国缔约方（以下简称中方）的资产（商品和应收账款合计）仅在中国境内。如果判决有利于外方，那么几乎可以肯定，该判决将不会被积极执行。因此，在中国执行强制执行程序是必要的。出于此原因，若在契约中规定意大利司法管辖权将会适得其反：首先需要在意大利进行耗时很长的诉讼，之后意大利法院做出的判决需要在中华人民共和国得到承认：虽然两国在1991年签订了民事司法互助条约，但是此过程非常官僚，需要判决书等所有文件的中文翻译及公正、认证。并且在承认的过程中，中方会尽全力拖延判决的承认并使其复杂化。
若耗时若干个月的裁定结果为“不可在中国执行判决”，那么外方将会上诉至中国法院。若如此，则会耗时若干年，并将承担更高的成本和苦涩的惊喜：在程序结束时，中方消失或破产，或没有资产可供执行。很不幸，上述情况是普遍存在的。
3）证人、鉴定报告及文件
另一个重要的因素涉及到契约的性质和缔约双方的行为地点。若合约义务在中国执行（例如商店的管理、代理商或经销商进行促销活动或供应/组装产品），则在中国法院进行诉讼的调查、证人的听证会以及相关专家以举证为目的，对产品的核证以及必要文件的分析相对简单许多。若在上述情况下由意大利法庭进行上述操作，将及其困难，并且显然是反经济的。反之亦然。
4）同样的法院，同样的法律
当在不可依据第三国法院及第四国法律的情况下，打破谈判僵局的折中方法通常是选择缔约方中一方国家的法院及另一方国家的法律。
此类的“创意”方案必须尽量避免，特别是避免选择中国司法管辖权。此做法的好处是，受理的法院是缔约双方所属国家的其中一个（理想情况下可以执行判决，如上所述），可以在法律的框架内，选择熟悉的法院及律师进行诉讼。但是，必须依据双方指定的外国法律（很少达成一致），或者任命一名专门针对该问题的法律专家顾问。最终导致诉讼程序更加复杂，耗时更久，成本显著增加。
5）预防措施
还有一种无法等待普通上诉程序，而是迫切需要法院立刻进行保护的紧急情况：最典型的案例是被授权人或加盟商与授权人或制造商进行不正当竞争，销售仿冒品或者在契约结束之后拒不向生产商或授权人归还商店或材料。
在此情况下，利益被侵害方向中国法院申请旨在结束非法行为的保护程序及执行紧急措施至关重要：若契约规定由中国司法管辖或仲裁，而契约中却存在关于意大利司法管辖（即防止在中国进行预防性保护上诉）的条款，则后果非常严重——无法及时有效地在中国采取限制严重损坏商誉和形象行为的行动。
越南 
巴西 
法国 
意大利 
沙特阿拉伯 
Finland 
埃及 
美国 
写信给 Benedikt
Spain – Distribution Agreements
2016年5月17日
-
西班牙
- 分销协议
Understanding the interplay between federal and state statutory and common law in the US legal system is important to understanding the regulation of exclusive distribution agreements in the US.
Under the US Constitution all power not specifically reserved for the federal government remains with the states. Federal law has exclusive jurisdiction only over certain types of cases (e.g., those involving federal laws, controversies between states and cases involving foreign governments), and share jurisdiction with the states courts in certain other areas (e.g., cases involving parties that reside in different states). In the vast majority of cases, however, state law has exclusive jurisdiction. Similarly, the doctrine of freedom of contract under US law also directly affects how distribution agreements are regulated in the US.
Furthermore, because a distributor is typically an unaffiliated third party acting on its own account rather than on behalf of the supplier as principal, distribution agreements are subject to greater regulation under US federal and state antitrust law. Such law, among other things, (i) regulates whether and the degree to which a supplier in a distribution arrangement may seek in a contract or otherwise to dictate the price at which the distributor will resell products supplied; (ii) imposes restrictions on suppliers that engage in “dual distribution” (selling product directly as well as through a distributor); and (iii) may limit the suppliers’ ability to sell product to different distributors at a different price. Antitrust law also regulates exclusivity and selective distribution arrangements, as well as distribution relationships in certain industries (e.g., federally: automobile manufacturers and petroleum; at the state level, heavy equipment, liquor and farm equipment industries). Furthermore, distribution agreements often may resemble franchise arrangements, subjecting those arrangements to extensive federal and state regulation.
Under the law of most states (including New York), exclusive distribution exists when a supplier grants a distributor exclusive rights to promote and sell the contract goods or services within a territory or to a specific group of customers. Exclusive rights in a distribution arrangement are often granted by the supplier for the distribution of high quality or technically complex products that require a relatively high level of expertise by the distributor, including staff that is specially training to sell the goods or specialized after-sales repair and maintenance or other services. Distribution agreements differ from commercial agency agreements in several respects. In contrast to a distributor, a commercial agent does not take title to product, does not hold inventory and typically has no contractual liability to the customer (including risk of customer non-payment). Conversely, a distributor, in line with the greater risk of its activities, typically can expect greater upside economically in terms of margins on resale relative to an agent’s profit through earned commissions.
Sub-distributors
Under the law of most states (including New York), a distributor may appoint sub-distributors absent any restrictions to the contrary in the agency agreement. Commercially, the appointment of a sub-distributor may have an adverse effect on the supplier by reducing the supplier’s control over its distribution channel activities or increasing the supplier’s potential liability exposure given the increased number of distributors whose actions may be attributed to the supplier. A supplier that does not manage properly the appointment of sub-distributors may also lose valuable product knowledge with respect to the distributed goods (particularly if the goods are novel or complex in nature). Advantages to sub-distributor appointments for the supplier may include a more effective overall marketing presence with enhanced local market knowledge, a broader geographic scope, a potentially lower costs as a result of the sub-distributors’ expertise and efficiencies, etc.
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Rights and Obligations of the Exclusive Distributor
- Sales organization: suppliers are not required to establish sales organizations in exclusive distribution agreements.
- Sales’ target: there are no mandatory rules under federal law or state law (including New York) generally regarding sales targets in exclusive distribution agreements. However, such provisions are common in exclusive distribution agreements.
- Guaranteed minimum target: minimum sales requirements are common in exclusive distribution agreements. As a commercial matter, a supplier as a requirement to give, or maintain, exclusivity with one distributor, will seek through such requirements to ensure that economically the distributor is performing satisfactorily. Often failure to meet sales targets may entitle a supplier to rescind the exclusivity, terminate the agreement or reduce the portion of the territory to which the exclusivity applies. We note that minimum sales requirements in an exclusive distribution arrangement may, in certain cases, be subject to challenge under antitrust law as having an undue anticompetitive effect by preventing a distributor from purchasing products from a competitive supplier.
- Minimum stock: there are no mandatory rules in federal law or the law of the majority of states (including New York) regarding minimum stock. A supplier may seek to have the distributor agree, contractually, to maintain adequate levels of stock relative to market demands as well as to store the product properly.
- After-sales service: the parties to a distribution agreement are generally free to agree as they deem appropriate with respect to after-sale service regarding products.
- Resale Prices: the Exclusive Distributor is free to fix the resale prices. State law (including New York law) generally does not limit the ability of an exclusive distributor to fix resale prices. […] A supplier’s ability to set resale prices for distributors is subject to limitations under federal and state antitrust law. Many state antitrust laws (including New York’s) closely resemble the federal antitrust laws. However, differences exist such that certain conduct may be found not to violate federal antitrust law but still be found to violate state antitrust law (or vice versa). Because the distributor (contrary to an agent) is acting on its own behalf, an agreement between supplier and distributor to maintain certain prices (or if a distributor is deemed to have been coerced by the supplier to follow certain prices), may be a per se price-fixing violation under federal and state antitrust law. Under federal antitrust law, vertical price-fixing until 2007 had been illegal per se. This per se rule was overturned by the Supreme Court. Horizontal price fixing remains per se illegal under the Sherman Act (see below).
Rights and Obligations of the Supplier
- Exclusive Distributor undertaking to supply: generally, state statutes do not specifically provide that a supplier in a distribution relationship has a duty to supply specific levels of product to a distributor, with such obligations generally be established by contractual provision. However, a supplier does have an implied covenant of good faith and fair dealing toward the distributor under state law generally, which generally requires that a party to a commercial agreement not do anything which injures the right of the other to receive the benefits of the agreement). Under the foregoing, a supplier may be deemed to have an obligation to supply product to a distributor (or be found to have violated the implied covenant of good faith and fair dealing in the event that the supplier, although able, decided not to provide a distributor with product without any other contractual justification for not doing so). However, even where such a duty were found to exist, the quantity and frequency of product supply and other details often remain unclear. To avoid uncertainty, distributors often seek to have a specific provision included in the distribution agreement, providing at least for the supplier to be required to use some degree of effort (e.g., “best efforts,”, “reasonable best efforts” or “reasonable efforts”) to supply product responsive to distributor’s submitted purchase orders. On a related topic, generally a distributor typically is only required to inform the supplier of lower purchase estimates if the distributor undertakes to do so (or undertakes a more general obligation with respect to the market) in the distribution agreement. However, even if the supplier is not, under an exclusive distribution agreement, required to supply the distributor with product, the supplier may still be subject to a contractual or common law obligation not to sell to third parties in the territory. New York courts held that suppliers that make direct sales to customers in the territory under an exclusive distribution agreement have breached their duties to the exclusive distributor.
- Retention of title: typically, in sales transactions on credit in the US, title is passed at the moment of initial sale. The buyer typically grants the supplier a security interest in the goods purchased, which if proper perfected under state law, affords the supplier with a priority position relative to other creditors with respect to the products provided (inventory) in the event of non-payment and enforcement.
Construction defects warranty
The law of “products liability” in the US is based on the law of torts. Under New York law, in cases of where an end user is injured by a defective product which was sold by the distributor under a distribution agreement, the end user generally is able to sue the distributor and the supplier of the product under one or more of the following theories: (i) strict liability; (ii) negligence; or (iii) breach of warranty. The usual theory of recovery against a distributor is strict liability. Under a strict liability theory, a supplier or distributor that sells a defective product while engaged in its normal course of business shall be liable for injuries it causes to customers, regardless of privity, foreseeability or the exercise of due care. Product liability cases also are brought under breach of warranty claims. Breach of warranty claims can be based on express warranties (e.g., from advertisement or a product label) and on implied warranties (typically, warranties of merchantability and fitness for a particular purpose under the provisions of the Uniform Commercial Code as adopted by the states). Lastly, negligence claims brought by plaintiffs are based on the improper conduct of the defendant, whether supplier or distributor or other participant in the distribution chain, with respect to the manner of distribution or care of the product sold (examples include improper storage or transport).
Under New York law, exceptions based on misuse, neglect or abuse by the suing party generally apply as defenses against liability under theories of strict liability, negligence or breach of warranty.
The supplier and distributor can allocate third-party liabilities (e.g., potential losses to be paid to plaintiffs in a products liability law suit) and related attorneys fees as between themselves through warranty and other indemnification provisions. Parties to a distribution agreement in the US often seek to put in place such re-allocation provisions not only because of potential liability resulting from a final, unfavorable judgment, but also because of the sizeable legal fees that litigants in the US often incur. In this regard, we note that in the US litigation costs are generally born by all of the litigating parties and not by the losing party as is common in many other countries. Such provisions may include indemnification provisions relating to product liability or trademark infringement claims brought by third parties, limitations on liability provisions (based on monetary caps and exclusions as to the types of damages that may be recovered, such as consequential, punitive, special and indirect damages) and disclaimers in respect of express or implied warranties that may otherwise apply under state law applicable to the distribution agreement.
Exclusivity
Exclusive-dealing provisions – under which the distributor undertakes not to distribute competing products in the territory – are quite common in distribution agreements. However, although it is not easy for a plaintiff to prevail, such a provision may be subject to challenge as an unlawful restriction on competition under federal and state antitrust law, typically under the following federal antitrust laws: (i) section 1 of the Sherman Act, which prohibits contracts “in restraint of trade;”; (ii) section 2 of the Sherman Act, which prohibits “attempt[s] to monopolize” and monopolization; (iii) section 3 of the Clayton Antitrust Act of 1914 […], which prohibits exclusivity arrangements that may “substantially lessen competition” or tend to create a monopoly; and, finally, (iv) section 5 of the Federal Trade Commission Act […], which prohibits “[u]nfair methods of competition.” In deciding these cases, typically courts apply the “rule of reason analysis” under which the exclusive dealing arrangements is analyzed considering a host of factors, including: (a) the defendant’s market power; (b) the degree of foreclosure from the market and barriers to entry; (c) the duration of the contracts; (d) whether exclusivity has the potential to raise competitors’ costs; (e) the presence of actual or likely anticompetitive effects; and (f) legitimate business justifications.
当进入新市场时，有不同的经销策略可供选择（1）在零售，汽车和批发贸易中，经销协议相当普遍（2）在国际经销协议中，双方可以选择适用的法律（3）无论是否被选择，适用的法律仍可能含有令人不快的条款，如德国法律下的商誉赔偿（4）本文将会展示如何可以避免这种令人不快的条款- 参考德国联邦法院（5）的2016年最新判决。
一．进入新市场
进入新市场时，存在不同的结构。选择哪一个取决于所期望的策略：让自己的员工直接销售，或者通过销售商，特许经营商，佣金代理商等销售代理间接销售贴牌产品，或者在许可范围内制造和销售第三方产品。有关德国销售的详细信息，请参阅Legalmondo上发布的“德国经销协议”。
二.经销协议
在零售（特别是电子，化妆品，珠宝，一些时尚用品），汽车和批发贸易中，分销系统是特别常见的 – 无论销售中介是否是指“分销商”，“中间商”，“经销商”，“专业零售商”，“特许经销商”，或“授权经销商”。经销商是个体经营的、独立的承包商，不断以自己的名义和自己的账户出售和推广产品。他们承担销售风险，反之亦然 – 制造商的利润相当低。经销商受到的保护通常较商业代理人少（在欧盟内，1986自营商业代理人的指令适用于欧盟成员国的各自的国家法律。）与销售代理人的协议相反，经销协议受到反垄断法的限制。原则上限制竞争是被禁止的，除非在第十一条TFEU（“欧洲联盟条约”）下它们不明显地限制竞争。有关在线销售的详细信息，请参阅Legalmondo上发布的“限制电子商务经销商”。
三．国际经销和法律选择
当制造商在国际范围内销售其产品或服务时，制造商和经销商的国家法律“碰撞”。为了解决冲突，创造法律确定性，当事人往往会选择适用的法律。通常，每个当事人都会试图适用它“自己的”，也许不是更有利的，但至少在国内外众所周知的法律。或者，双方可以就一个“中立的”，第三方国家的法律达成一致——比如在意大利制造商和德国经销商之间适用瑞士法，并且合同标准方面也有更多的自由。即使选择了法律，在国际贸易中也会有令人不悦的意外——正如“不同国家，不同风俗”的说法一样。
- 首先，因为适用法的选择可能无效——例如，在一些南美国家和中东地区。
- 其次，因为可能会有国际强制性规定(“overriding mandatory provisions”, “lois des police” or “Eingriffsnormen“) ，其对维护国家公共利益具有重要意义以至于“凌驾于”法律选择之上即尽管有其他可选择的有效力的法律其仍被适用。
- 再者，因为所选择的法律可能包含令人不悦的意外，比如德国的经销商商誉损害赔偿。
- 四．“德国”经销商赔偿
此外，德国法律可能会制造意外，特别是以经销商在终止时的善意赔偿请求为形式。虽然在德国法律下没有明确的经销商规则，但有广泛的判例法，并且经销商也适用不同的代理规则，如果以下两种情况得到满足：
经销商
- 整合到供应商的销售组织中；以及
- 在合同终止或期间有义务（由于协议或事实）转发客户数据
如果允许的话，经销商基本上也有权要求终止时的商誉补偿（在与代理人相同的条件下）。一般来说，这种商誉补偿的计算是基于经销商在过去一年中的新客户或经销商已经显著增加业务的已有客户所带来的利润。细节不同；德国法院接受不同的计算方法。
五、如何避免“德国”的经销商商誉赔偿
长期以来，经销商在德国以外但在欧洲经济区（“EEA”）以内经营，是否可以提前排除（即在终止合同前）在德国法律以及相似的代理法下（德国商法典.89b节）的经销商商誉赔偿，这一问题一直存在争议。
这一问题在提交德国联邦法院前被审查（第25／02／2016号决定，参考文献第七号ZR102/15）。被告为在德国成立的电气工业设备制造商。原告为在瑞典和其他欧洲经济区国家活动的经销商。由德国法支持的经销协议；任何签约后的补偿或者薪酬被排除。在被告终止协议后，原告作为经销商要求商誉赔偿。原告在下级法院没有成功，但德国联邦法院现在决定支持原告（并且，法兰克福高级地方法院在06／02／2016，第11号U 136/14（Kart）上采取同样的做法）。
裁决的重点是关于商誉赔偿条款的领土范围（德国商法典89b节）。根据该条款，代理人的商誉赔偿不能提前排除。在已有的判例法中，这一规定可能类似地适用于经销商（见上文）。然而，对于如果经销商在德国范围外，在欧盟/欧洲经济区内经营是否仍被强制支付商誉损害赔偿这一问题存有争议。德国联邦法院如今已经确认——尤其争论于（1）代理法的历史发展和（2）其保护代理商以及经销商的目的：在其他欧洲经济区国家而非德国经营的经销商应当和在德国经营的经销商一样受到保护；相关条款的目的是防止由于对制造商/供应商经济上的依赖而导致的不利的协议。最后，联邦法院认为没有必要向欧盟法院提交这一问题，因为它不属于《1986自营商业代理人指令》的范围。
新的判决与现行判例法相一致：德国联邦法院很可能会继续以此类推向经销商实施代理法。
合同惯例和未来合同起草的五个实用技巧：
1．商誉补偿是一种仅在销售协议出现之后的费用，但应事先考虑——并且，如果此费用可被避免或事先另行规定（例如：规定入门费）。
2.如果经销商在EEA欧洲经济区以外经营，商誉赔偿的索赔随时可被排除，例如：已经存在于经销协议中可被排除（德国商法典92c节；慕尼黑区域法院，11 / 01 / 2002决定，参考号为23 U 4416 / 01）
- 如果经销商在欧洲经济区内经营，适用德国法律并且满足上述两个条件，经销商的商誉损害赔偿的索赔不得在协议终止之前被排除。
- 经销商的德国商誉赔偿可以事先被排除，尤其当当事人:
(i) 排除转移客户数据；或
(ii) 强迫制造商封锁，停止使用，如有必要，在协议终止时删除此类客户数据（德国联邦法院，第05／02／2015号决定，参考第七号315/13文献）；或
(iii) 选择另一法律（因此，导致另一管辖权或仲裁）。
- 或者，当事人可以通过约定“入门费”(“Einstandszahlungen”)来减轻商誉赔偿的索赔——甚至可以推迟到协议终止，然后抵消对商誉赔偿的索赔。然而，此类入门费不可以不合理地过高（联邦法院，第24／02／1983号决定，参考第I ZR 14/81文献），其必须对应于回报值。例如：一个特别高的经销折扣或者一个长期协议期限（慕尼黑高等地区法院，04 / 12/1996的决定，参考号为7 U 3915/96，Saarbrücken高等地区法院，30 / 08 / 2013的决定，参考号为1 U 161/12）。简而言之，制造商必须证明，即使没有入门款，双方也不会同意更高的手续费（正如德国联邦法院2016年7月14日所决定的，参考第VII ZR 297/15文献）。b
The Court of Justice of the European Union (“CJEU”) has issued a new ruling on the international scope of the Commercial Agency Directive (86/653/EEC of 18 December 1986). The new decision is in line with the rulings of
- the CJEU in the Ingmar case (decision of 9 November 2000, C-381/98, goodwill indemnity mandatory where the agent acts within the EU) and Unamar (decision of 17 October 2013, C-184/12, as to whether national agency law is mandatory where exceeding the Commercial Agency Directive’s minimum protection) and
- the German Federal Supreme Court of 5 September 2012 (German agency law as mandatory law vis-à-vis suppliers in third countries with choice-of-court clause).
The question
Now, the CJEU had to decide whether a commercial agent acting in Turkey for a supplier based in Belgium could claim goodwill indemnity on the basis of the Commercial Agency Directive. More specifically, the question was whether the territorial scope of the Commercial Agency Directive was given where the commercial agent acts in a third country and the supplier within the EU – hence opposite to the Ingmar case.
The facts
According to the agency contract, Belgian law applied and the courts in Gent (Belgium) should be competent. Belgian law, transposing the Commercial Agency Directive, provides for a goodwill indemnity claim at termination of the contract (and, additionally, compensation for damages). However, the referring court considered that the Belgian Law on Commercial Agents of 1995 was self-restraining and would apply, in accordance with its Art. 27, only if the commercial agent acted in Belgium. Otherwise, general Belgian law would apply.
The decision
The CJEU decided that the parties may derogate from the Commercial Agency Directive if the agent acts in a third country (i.e. outside the EU). This has here been the case since the agent acted in Turkey.
The decision is particularly noteworthy because it – rather by the way – continues the CJEU’s Ingmar ruling under the Rome I Regulation (I.). In addition, it indirectly confirms sec. 92c of the German Commercial Code (II.) – which allows the parties to a commercial agent agreement governed by German law to deviate from the generally mandatory agency law if the commercial agent is acting outside the European Economic Area (“EEA”). Finally, it provides legal certainty for distribution outside the EEA and illustrates what may change after a Brexit as regards commercial agents acting in the United Kingdom (III.) – if the EU and the United Kingdom do not set up intertemporal arrangements for transition.
For details, please see the article by Benedikt Rohrßen, Zeitschrift für Vertriebsrecht 2017, 186 et seq. (“Ingmar reloaded – Handelsvertreter-Ausgleich bei umgekehrter Ingmar-Konstellation nicht international zwingend”).
Manufacturers of brand-name products typically aim to ensure the same level of quality of distribution throughout all distribution channels, offline and online. To achieve this aim, they provide criteria how to resell their products. With the increase of internet sales, the use of such criteria has been increasing as well.
A total ban of online sales to end consumers within the EU is, however, hardly valid because online sales are considered as passive sales (cf. Guidelines on Vertical Restraints 2010, para. 52). Restrictions below a total ban are, however, commonplace (for examples, see the post “eCommerce: restrictions on distributors in Germany”). Yet, it is still not clear how far such restrictions are permissible.
For example, the luxury perfume manufacturer Coty’s German subsidiary Coty Germany GmbH has set up a selective distribution network and its distributors may sell via the Internet, under the following conditions. They shall
- use their internet store as “electronic store window” of their brick and mortar store(s), thereby maintaining the products’ character as luxury goods, and
- abstain insofar from engaging third parties as such cooperation is externally visible.
The court of first instance decided that tsuch ban of sales via third party platforms was an unlawful restriction of competition under art. 101 Treaty on the Functioning of the European Union (“TFEU”), namely a hardcore restriction under article 4 lit. c Regulation (EU) No. 330/2010 (Vertical Block Exemptions Regulation or “VBER”). The court of second instance, however, does obviously not see the answer that clear. Instead, the court requested the Court of Justice of the European Union (CJEU) to give a preliminary ruling on how European antitrust rules have to be interpreted, namely article 101 TFEU and article 4 lit. b and c VBER (decision of 19.04.2016, ref. no. 11 U 96/14 [Kart]) – see the previous post “eCommerce: restrictions on distributors in Germany”.
On 30 March 2017, the hearing took place before the CJEU:
- Coty defended its platform ban, arguing it aimed at protecting the luxury image of brands such as Marc Jacobs, Calvin Klein or Chloe.
- France – seat of several luxury brands such as Louis Vuitton, Chanel and Christian Dior –supported Coty.
- The distributor instead argued that established platforms such as Amazon and eBay already sold various brand-name products, e.g. of L’Oréal. Accordingly, there was no reason for Coty to ban the resale via these marketplaces. Germany also supported this view by emphasizing the importance of online platforms for small and medium-sized enterprises (where, however, the share of distributors using online marketplaces is 62% much higher than in all other Member States, see the Staff Working Document, „Final report on the E-commerce Sector Inquiry“, para. 452).
- Luxembourg – the seat of Amazon – considers a general platform ban to be disproportionate and therefore as anti-competitive (cf. Reuters’ article here).
Interest in the outcome of the Coty case is widespread, as the active participation of the various EU Member States illustrates (in addition to the abovementioned countries, also Italy, Sweden, the Netherlands and Austria). Simply put, the question is whether owners of luxury brands may generally or at least partially ban the resale via internet on third-party platforms.
Indications on how the court may decide have just appeared on 26 July 2017, with the Advocate General giving his opinion. The Advocate General proposes that the CJEU answers the questions referred to the court as follows:
“(1) Selective distribution systems relating to the distribution of luxury and prestige products and mainly intended to preserve the ‘luxury image’ of those products are an aspect of competition which is compatible with Article 101(1) TFEU provided that resellers are chosen on the basis of objective criteria of a qualitative nature which are determined uniformly for all and applied in a non-discriminatory manner for all potential resellers, that the nature of the product in question, including the prestige image, requires selective distribution in order to preserve the quality of the product and to ensure that it is correctly used, and that the criteria established do not go beyond what is necessary.
(2) In order to determine whether a contractual clause incorporating a prohibition on authorised distributors of a distribution network making use in a discernible manner of third-party platforms for online sales is compatible with Article 101(1) TFEU, it is for the referring court to examine whether that contractual clause is dependent on the nature of the product, whether it is determined in a uniform fashion and applied without distinction and whether it goes beyond what is necessary.
(3 The prohibition imposed on the members of a selective distribution system who operate as retailers on the market from making use in a discernible manner of third undertakings for internet sales does not constitute a restriction of the retailer’s customers within the meaning of Article 4(b) of Commission Regulation (EU) No 330/2010 of 20 April 2010 on the application of Article 101(3) on the Treaty of the Functioning of the European Union to categories of vertical agreements and concerted practices.
(4) The prohibition imposed on the members of a selective distribution system, who operate as retailers on the market, from making use in a discernible manner of third undertakings for internet sales does not constitute a restriction of passive sales to end users within the meaning of Article 4(c) of Regulation No 330/2010.”
The Advocate General’s complete opinion can be found at CJEU’s website here.
The updated overview of the procedure can be found at CJEU’s website here.
Practical Conclusions
- The Coty case is extremely relevant to distribution in Europe because more than 70% of the world’s luxury items are sold here, many of them online now.
- The general ban to use price comparison tools shall be anti-competitive – according to the Bundeskartellamt, as confirmed by the Higher Regional Court of Düsseldorf on 5 April 2017. The last word is, however, still far from being said – see the post “Asics’ Distribution of Sporting Goods: Ban of Price Comparison Tools anti-competitive & void?!?”. Besides, also the Coty case’s outcome may influence how to see such bans.
- The Coty case is setting the course for future Internet sales. Depending on the decision of the CJEU, manufacturers of luxury or brand-name products can continue to ban the use of marketplaces like Amazon or eBay for the distribution of their products – or not any more or only under certain conditions. If the court follows the Advocate General’s conclusions, such platform bans appear possible, provided that the platform ban depends “on the nature of the product, whether it is determined in a uniform fashion and applied without distinction and whether it goes beyond what is necessary” (see above).
- For further trends in distribution online, see the EU Commission’s Final report on the E-commerce Sector Inquiry and details in the Staff Working Document, „Final report on the E-commerce Sector Inquiry“.
- For details on distribution networks and antitrust, please see my article „Plattformverbote im Selektivvertrieb – der EuGH-Vorlagebeschluss des OLG Frankfurt vom 19.4.2016“, in: Zeitschrift für Vertriebsrecht 2016, p. 278–283.
Manufacturers of brand-name products typically aim to ensure the same level of quality of distribution throughout all distribution channels. To achieve this aim, they provide criteria how to resell their products. With the increase of internet sales, the use of such criteria has been increasing as well.
Best example: Asics. Until 2010, the German subsidiary Asics Deutschland GmbH supplied its distributors in Germany without applying special criteria. In 2011, Asics launched a selective distribution system called “Distribution System 1.0“. It provided, inter alia, for a general ban on distributors to use price comparison tools in online sales:
“In addition, the authorized B … distributor is not supposed to … support the functionality of price-comparison tools by providing application-specific interfaces (” API”) for these price comparison tools.” (translated]
The German Federal Antitrust Authority (“Bundeskartellamt”) has determined by decision of 26 August 2015 that the ban of price-comparison tools against distributors based in Germany was void because it infringed Article 101 (1) TFEU, sec. 1 Act on Restraints of Competition (see the 196-page decision here). Reason given was that such ban would primarily aim at controlling and limiting price competition at the expense of consumers. Asics, instead, filed a complaint before the Higher Regional Court of Düsseldorf to annul the Bundeskartellamt’s decision. Asics argued that this ban was a proportionate quality standard within its “Distribution System 1.0“, aiming at a uniform product presentation.
Now the Higher Regional Court of Düsseldorf on 5 April 2017 confirmed the Bundeskartellamt’s decision that within selective distribution systems the general ban to use price comparison tools was anti-competitive and therefore void (ref. no. VI-Kart 13/15 (V); see also the Bundeskartellamt’s press release in English):
- In particular, the ban of price comparison tools was not exempt from Art. 101 (1) TFEU by way of teleological interpretation (“Tatbestandsreduktion”). According to the court, it was not necessary in order to protect the quality and the product image of the Asics brand (same argumentation as the Higher Regional Court of Frankfurt in its judgment of 22.12.2015, ref. no. 11 U 84/14 regarding Deuter’s functional back-up bags; the Federal Supreme Court will, however, still decide on this, ref. no. KZR 3/16). The court declared that the ban was intended to restrict the buyers, arguing that distributors would be restricted in entering into a price competition with others. The presentation of products in price comparison tools would not damage the quality or brand of Asics products. It would neither give a “flea market impression“, ostensibly also not from the simultaneous presentation of used products. Also, the ban of price comparison tools would not solve the problem of “free-riding“. In any event, the general ban of price comparison tools was not necessary and therefore unlawful.
- The ban would also not be exempt under the Vertical Block Exemption Regulation. Instead, the court argued, the ban would limit passive sales (over the internet) to end customers, contrary to Art. 4 (c) Vertical Block Exemption Regulation (referring to the CJEU decision in the case of Pierre Fabre, 13 October 2011, ref. no. C-439/09). The “equivalence principle” (i.e. restrictions for offline as well as online sales should not be identical, but functionally equivalent) would not apply as there were no comparable functions to price comparison tools in the stationary trade.
- Finally, the ban would also not benefit from the individual exemption under art. 101 (3) TFEU (“efficiency defence”).
Conclusions:
- According to the Higher Regional Court of Düsseldorf, manufacturers might not generally prohibit their distributors from using price comparison tools. At the same time, the court also refused to grant leave to appeal against its decision – which, however, can be challenged separately by way of an appeal (sec. 74, 75 Act on Restraints of Competition).The future development of criteria limiting distributors in reselling online remains open, especially as (i) the Coty case is pending at the CJEU (see below) and (ii) the EU Commission in its sector enquiry into e-commerce currently appears to favour manufacturers of brand-name products (see below).
- The court has explicitly left open – arguing that they were not relevant for its decision – whether
- the ban of search engines is anti-competitive (para. 44 et seq. of the decision);
- the general ban of third-party platforms is anti-competitive (para. 7) – although Asics’ “Distribution System 1.0” also banned third-party platforms such as Amazon or eBay.
- Whether and how manufacturers of luxury or brand-name products can continue to ban their distributing via Amazon, eBay and other marketplaces in general in the future will likely be decided by the CJEU in the coming months – in the case of Coty (see our post “eCommerce: restrictions on distributors in Germany”) where a hearing has been just recently been held end of March 2017.
- Without prejudice to the Coty case, the EU Commission has however, in its sector enquiry into e-commerce of May 2017, declared that
- “marketplace bans do not generally amount to a de facto prohibition on selling online or restrict the effective use of the internet as a sales channel irrespective of the markets concerned …,
- the potential justification and efficiencies reported by manufacturers differ from one product to another …”,
- (absolute) marketplace bans should not be considered as hardcore restrictions within the meaning of Article 4(b) and Article 4(c) of the VBER…,
- the Commission or a national competition authority may decide to withdraw the protection of the VBER in particular cases when justified by the market situation”
(41–43 Final Report on the e-commerce sector inquiry).
Hence, on the basis of the EU Commission’s most recent position, there is room for arguments and creative contract drafting since even general marketplace bans can be compatible with the EU competition rules. However, the courts may see this differently in the single case. Therefore, especially the CJEU with its Coty case (see above) will likely bring more clarity for future online distribution.
在分销合同中，制造商和供应商倾向于限制分销商在线销售商品(I.)。尽管这种做法相当普遍，但反垄断法对于是否有和有哪些限制得到允许并没有建立明确的规定(II.)，特别是有关于在选择性分销网络上销售奢侈品的情况(III.).。
如今，上述问题将决定于欧盟司法法院（CJEU）对互联网上的销售限制的所做出的初步裁决（IV）。以此同时，出现一个问题：如何处理转售限制？(V.)。
电子贸易销售限制
电子贸易不断发展–在全球并且也在德国，它约占总零售额的10%（据“Handelsverband Deutschland” [德国贸易协会]2016年的数据）。同样，知名品牌制造商也试图利用电子商务的市场机遇，同时努力维护自己品牌的形象。因此，制造商对分销商进行了若干限制，特别是：
- 全面禁止互联网销售，
- 禁止通过第三方线上平台销售（特别是“市场”），
- 经营一个实体店作为因特网销售的先决条件，
- 双重定价，或
- 互联网销售的质量标准。
对网上转售限制的反垄断限制
然而，反垄断当局最近对这些限制进行了审查，并在电子商务中实施反垄断规则。因此，有相当多的法院判决和反垄断当局的决定，赞成和反对这种限制的都有，例如：
- 包（“Scout”第三方平台），
- 运动（“ASIC”价格比较，标志条款，“阿迪达斯”第三方平台），
- 电子（“森海塞尔”和“卡西欧”均为第三方平台），
- 奢侈化妆品/香水（“科蒂”价格比较，第三平台），或
- 软件（“谷歌”要求制造商预装应用程序，参见欧洲联盟委员会2016年4月20日的新闻稿）。
现在，Coty德国奢侈化妆品案已达到欧洲水平。
如今的科蒂案
本案的事实如下:供应商（Coty Germany GmbH）成立了一个选择性分销网络。分销商可在以下限制下通过互联网销售。它们应:
- 利用它们的网络商店作为其实体店的“电子商店窗口”，从而维持产品的奢侈品性质，以及
- 禁止与第三方合作，因为这种合作是对外可见的。
当事人的意图：供应商要特别实施最后的限制，阻止一个通过亚马逊的市场来销售供应商商品的分销商(Parfümerie Akzente GmbH)。很明显，分销商打算摆脱这种限制。
一审法院，法兰克福区法院，根据《欧洲联盟运作条约》（“TFEU”）第101条，裁决认为通过第三方平台的销售禁令，即Regulation（EU）第330/2010（坚决豁免规定或“VBER”）第四条（C）款。然而，二审法院，法兰克福高级地方法院，显然没有给出明确的答案。因此，法院已要求欧盟法院（CJEU）对欧盟反垄断规则即《欧洲联盟运作条约》第101条和第4条（b）款和（c）款（ 19.04.2016, ref. no. 11 U 96/14 [Kart]的决定)如何解释作出初步裁决，
提交给欧盟法院的问题
欧盟司法法院已经为“科蒂德国”立案（reference no. C-230/16）。以下是欧盟司法法院需要回答的四个问题：
- 选择性的分销网络的目标在于销售奢侈品以及确保商品有“奢侈的形象”以保 持竞争，这与《欧洲联盟运作条约》第101条第一款可以共存吗？
如果第一个问题得到肯定的回答：
- 在具体案例中，如果一个在零售业经商的选择性分销网络的成员被广泛禁止在公开的第三方线上平台进行网络销售，无论生产商的质量是否合法，其竞争性是否与《欧洲联盟运作条约》第101条第一款共存？
是否欧盟法第330 / 2010第四条（b）款可被解释为，强制禁止在零售业经商的选择性分销网络的成员在公开的第三方线上平台进行网络销售，限制了零售商的消费群体有关于物品的选择？
是否欧盟法第330 / 2010第四条（c）款可被解释为，强制禁止在零售业经商的选择性分销网络的成员在公开的第三方线上平台进行网络销售，限制了向终端用户通过物品的消极销售？
如今如何对待限制
在德国，关于网上销售的禁令有一些判例法，有些判决是赞成的，有些判决是反对的。网络销售的限制最近也被德国联邦卡特尔局所审查（联邦反垄断局），这种审查对反对这种限制有很关键的作用，包括对在第三方平台销售的限制。
然而德国最高法院的判决仍旧下落不明。关于供应商和分销商是否可以有效地达成一致特别是对于奢侈品方面的问题也至今没有一个清楚的答案。欧盟司法法院的初步判决应该给予这些问题清晰的回复。
直到欧盟司法法院初步判决下来，目前的法律现状应该特别建立在纵向限制标准2010（其不具备法律质量并且也不约束法庭，而是规定了指导欧洲委员会对纵向协议进行评估的原则，从而通过原则约束欧洲委员会本身）上：
- 全面禁止网络销售很难成立因为网络销售被认为是被动销售（参见纵向限制标准2010，第52段）。几乎没有一个批准是限制网络商店语言的因为这并不能改变这种销售的被动性质（参见纵向限制标准2010，第52段）。对互联网销售的营业额的限制也是如此。
- 然而，允许必须是，特别是
- 对电子商务平台设计的定性要求（不造成全面禁止和不限制语言的使用）
- 对在独占区域，或对供应商的独家客户群，或由供应商分配的另一个买家积极销售的限制（VBER第四条b款（i）项），比如在第三方网站上的区域性横幅（参见纵向限制标准2010，第53段）。
- 成为供应商选择性分销网络成员的一般定性限制，例如要求分销商有一个或者多个实体店或陈列室（纵向限制标准2010，第54段，176）
欧盟法院的判决将更加清晰——Legalmodo会持续更新科蒂德国案和其他对于网络分销有可能的影响。
Agency agreements
Agency Agreements are regulated by the Agency Agreements Law 12/1992 (which has transposed Directive 86/653/EEC into Spanish law).
The main characteristic of the agency agreement is that through this an individual or a legal entity (the Agent) agrees with the Principal on a continuous or regular basis and against payment of a consideration to be agreed, to promote commercial acts or transactions for the account of such Principal not assuming the risk and hazard of such transactions, unless otherwise agreed.
Commercial relationship: Agents are independent intermediaries who do not act in their own name and behalf, but rather for and on behalf of one or more Principals.
There is no labour but commercial relationship between the Principal and the Agent.
It is presumed that the agency relationship is as a matter of fact. On the contrary, there is a labour relationship when the agent in not entitled to organize by his own his business activity nor to fix its own timetable.
Agents Obligations: Agents must, on his own or through his employees, negotiate and, if required by contract, conclude on behalf of the Principal, the business and transactions he is instructed to handle. Agents are subject to a number or obligations, including the following:
- An agent cannot outsource his activities unless expressly authorized to do so.
- An agent is authorized to negotiate agreements or transactions included in the agency agreements, but can only conclude them on behalf of its principal when expressly authorized to do so.
- An agent may act on behalf of several principals, unless the related goods or services are similar or identical, in which case express consent is required.
Main obligations of the Principal are:
- To act loyally and in good faith in its relations with the agent.
- To provide the agent with all the documentation and the information which he may need to develop his activity.
- To pay the agreed consideration.
- To accept or reject transactions proposed by the agent.
The agency agreement must always be remunerated/paid. The consideration may consist of a fixed amount, a commission or a combination of both.
Indemnity: the agent is entitled to:
- A damages and prejudices indemnity if the contract is terminated by the Principal without cause (not to apply when the termination takes place at the end of the agreed Term).
- A compensation for clientele/goodwill if the contract is terminated without cause or terminated through expiration of the agreed term provided the agent has contributed with new clients to the Principal business or increased the transactions with the Principal client portfolio and provided that the Principal can benefit in the future of such activity from the agent. Such compensation cannot exceed the average of the payments/commissions received by the agent throughout the last five years or throughout the contract effectiveness if the duration has been below five years.
Non Competition: non-competition provisions (i.e., provisions restricting or limiting the activities that can be carried out by the agent once the agency agreement has been terminated) have a maximum duration of two years from the termination of the agency agreement and must be: agreed in writing, limited to the geographical area where the agent has been trading and related to goods or services object of the agency agreement.
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Distribution / Concession agreements
There is not a specific regulation for distribution agreements; therefore the Civil Code general contract regulation applies. Through this type of contract the Distributor undertakes toward the Principal – on a continuous or regular basis and against payment of a consideration to be agreed – to promote commercial acts or transactions for the account of such Principal, but assuming the risk and hazard of such transactions.
In practice, distribution agreements are often confused with agency agreements. Nevertheless, they are different and have distinct regulations and characteristics.
- Under a distribution agreement, the distributor undertakes to purchase goods belonging to the other party for resale. While under the agency agreement the agent is paid a commission but not purchases and resales.
- Under the distribution agreement the Distributor assumes the entire risk of the transaction while under the agency agreement the risk remains with the Principal.
Commercial relationship: under the distribution agreement the link is completely commercial; the risk of a labour relationship being declared is much lower than under the agency agreement due to the fact of the Distributor higher independency and autonomy.
The distribution agreement may be granted under an exclusive or non-exclusive basis. The exclusive may work on both sides: the distributor could be contractually liable to only work with the principal (or not) and the Principal could be contractually bound to only work with the distributor on a given territory.
Parties Obligations: while the Agency Agreement is governed through the Agency Agreements Law (which includes mandatory rules), Distribution Agreements are subject to the Civil Code and therefore the “freedom principle” applies in order to set forth the parties obligations regime.
The Distributor is not paid by the Principal. He makes his benefit through the difference between purchase and sale price.
Indemnity: although the clientele/goodwill indemnity only applies to the agency agreements, the Supreme Court has in various sentences decided that the Distributor could have the right to be paid such an indemnity provided similar provisions as those stated at the Agency Agreements law (see above) where met on an analogy basis.
Non Competition: non-competition provisions (i.e., provisions restricting or limiting the activities that can be carried out by the distributor once the distributor agreement has been terminated) are valid provided that they are expressly agreed through the agreement and its reasonability can be defended and sustained (in terms of territory, term and consideration).
Commission agency agreements
Through this type of contract, the commission agent undertakes to perform or to participate in a commercial act or agreement on behalf of the Principal.
Commission agents may act:
- In their own name, acquiring rights against the contracting third parties and vice versa or
- On behalf of their principal, who acquires rights against third parties and vice versa
Obligations of commission agents:
- To protect interests of the Principal as if they were their own and to perform their engagement personally. Commission agents may delegate their duties if authorized to do so and may use employees at their own liability.
- To account for amount that they have received as commission, to reimburse any excess amount and to return any unsold merchandise.
- Commission agents are barred from buying for their own account or for the account of others, without the consent of their principal, the goods that they have been instructed to buy.
Commission: The principal undertakes to pay a commission to the commission agent, usually linked and only accrued if the Transaction is closed.
Differences and similarities between agency agreements and commission agency agreements.
- Main similarity: In both cases, and individual or legal entity undertakes to pay another compensation for arranging a business opportunity for the former to conclude a legal transaction with a third party, or for acting as the former’s intermediary in concluding the transaction.
- Main difference: Agency agreements involve an engagement on a continuous or regular basis, whereas commission agency agreements involve occasional engagements.
Franchise Agreements
Franchise Agreements are governed through (i) the Law 7/1996, of January 15, regulations retail trade, regarding the basic conditions for the franchise activity and creating the Register of Franchisors; (ii) Royal Decree 201/2010, of February 26, regulating the exercise of the commercial activity under a franchise arrangement and the communication of information to the Register if Franchisors; and (iii) Royal Decree 378/2003, which refers to Regulations (EC) No. 2790/1999, of December 22, 1999, relating to the application of Article 81(3) of the Treaty to certain categories of vertical agreements. Through the Franchise Agreement the franchisor grants a right to, and imposes an obligation on, its individual franchisees, for a specific market, to pursue the business or commercial activity (sale of goods, services or technology) previously carried out by the Franchisor with sufficient experience and success, using the knowhow, system, trademarks, IP rights etc. defined by the Franchisor.
The Franchise Agreement entitles and obliges the Franchisee to use the brand name and/or trade or service mark for the goods and/or services, the know-how and the technical and business methods, which must be specific to the business, material and unique, the procedures and other intellectual property rights of the Franchisor, backed by the ongoing provision of commercial and technical assistance under, and during the term of, the relevant franchising agreement between the parties, all of the above regardless of any supervisory powers conferred on the Franchisor by contract.
Formalities: In Spain, prior to start franchising activities, Franchisors must register in a public administrative Register of Franchisors.
Although the very short regulation of the Franchise Agreement leaves ground for the freedom principle, usually the franchisee pays a royalty to the Franchisor (commonly linked to the volume of sales but could also be a fix royalty), and a publicity royalty (so as to contribute to the Principal publicity cost of which the franchisee benefits).
Non Competition: throughout the life of the agreement, non-competition clauses (reciprocally) are common and admissible; after the termination of the contract, the Spanish Court usually admits the validity of the one year non-competition clause but limited to the location where the franchise had been working.
用于约束解决双方争议的方式、规定相关适用法律的契约条款通常被称为“午夜条款”。在许多契约案例中，此条款通常被书写在契约的最末几段，以至于在谈判即将结束时才被讨论，通常此时已是深夜，双方都已精疲力竭，决定在契约上签字。
以上情况通常有两种：第一，在仓促、不谨慎的情况下作出决定。双方相信已在契约重要的问题上达成协议，所以对如何解决争议不够重视。
第二种情况则是相反：双方就管辖权所属法院及适用法律产生矛盾。双方都坚决地要求在自己的国家实施管辖权并适用该国法律。但是，此情况大多因为原则问题和国内外的标准差别问题，而不是因为双方了解问题的实际重要性。
上述两种情况都是棘手的，因为双方都将自己置于风险中：可导致做出错误的决定或无奈地妥协，并且可能会使将来采取的法律行动无效。
所以，必须足够重视并慎重地考虑该条款：通过阅读以下几点思考，牢记在慎重选择契约的司法管辖权和适用法律的同时，保留对另外一篇主题与本文主题同样重要的文章——对仲裁结果进行预知的讨论。
1）中国法官不再是禁忌
在过去很长一段时间，外国人害怕与中国法官接触，因为中国法官曾大多是来自其他公共管理部门的国家公务员。在他们眼中，中国法官被政治化，公正性受到质疑而且一般相当无能。但是今天，至少在被国际投资覆盖多年的城市，情况已经发生变化：司法水平有了明显提高，可独立计算诉讼成本，初审耗时很短（约6个月），并且很大程度上判决公正，特别是在得到合格律师辩护的情况下。因此，考虑到未来可能发生的情况及争议，在起草契约时提出中国司法管辖权是非常必要的。
2）资产在何处？
判决执行的地点是决定司法管辖权最重要的因素。在起草契约时预见在商业关系中可能产生的纠纷，以及将在哪里执行判决（中国或是意大利），都是十分必要的。
在大多数情况下，中国缔约方（以下简称中方）的资产（商品和应收账款合计）仅在中国境内。如果判决有利于外方，那么几乎可以肯定，该判决将不会被积极执行。因此，在中国执行强制执行程序是必要的。出于此原因，若在契约中规定意大利司法管辖权将会适得其反：首先需要在意大利进行耗时很长的诉讼，之后意大利法院做出的判决需要在中华人民共和国得到承认：虽然两国在1991年签订了民事司法互助条约，但是此过程非常官僚，需要判决书等所有文件的中文翻译及公正、认证。并且在承认的过程中，中方会尽全力拖延判决的承认并使其复杂化。
若耗时若干个月的裁定结果为“不可在中国执行判决”，那么外方将会上诉至中国法院。若如此，则会耗时若干年，并将承担更高的成本和苦涩的惊喜：在程序结束时，中方消失或破产，或没有资产可供执行。很不幸，上述情况是普遍存在的。
3）证人、鉴定报告及文件
另一个重要的因素涉及到契约的性质和缔约双方的行为地点。若合约义务在中国执行（例如商店的管理、代理商或经销商进行促销活动或供应/组装产品），则在中国法院进行诉讼的调查、证人的听证会以及相关专家以举证为目的，对产品的核证以及必要文件的分析相对简单许多。若在上述情况下由意大利法庭进行上述操作，将及其困难，并且显然是反经济的。反之亦然。
4）同样的法院，同样的法律
当在不可依据第三国法院及第四国法律的情况下，打破谈判僵局的折中方法通常是选择缔约方中一方国家的法院及另一方国家的法律。
此类的“创意”方案必须尽量避免，特别是避免选择中国司法管辖权。此做法的好处是，受理的法院是缔约双方所属国家的其中一个（理想情况下可以执行判决，如上所述），可以在法律的框架内，选择熟悉的法院及律师进行诉讼。但是，必须依据双方指定的外国法律（很少达成一致），或者任命一名专门针对该问题的法律专家顾问。最终导致诉讼程序更加复杂，耗时更久，成本显著增加。
5）预防措施
还有一种无法等待普通上诉程序，而是迫切需要法院立刻进行保护的紧急情况：最典型的案例是被授权人或加盟商与授权人或制造商进行不正当竞争，销售仿冒品或者在契约结束之后拒不向生产商或授权人归还商店或材料。
在此情况下，利益被侵害方向中国法院申请旨在结束非法行为的保护程序及执行紧急措施至关重要：若契约规定由中国司法管辖或仲裁，而契约中却存在关于意大利司法管辖（即防止在中国进行预防性保护上诉）的条款，则后果非常严重——无法及时有效地在中国采取限制严重损坏商誉和形象行为的行动。
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