The Commission closed its investigation after the studios agreed to waive the MFN clauses contained in the existing agreements. The guidelines provide a detailed explanation of what the Commission considers to be a “genuine agency agreement” (points 12 to 20). Under the new text, an agency agreement does not fall under Article 81, paragraph 1, where the representative does not bear or bears only trivial risks. It is also necessary that the agent does not own the goods sold or purchased or that he is not the service provider himself. However, it is not significantly indicated whether the agent is acting for one or more large obligations. Is there a procedure in which individuals can complain to the cartel enforcement authority and abuse of dominant position about allegedly illegal vertical restrictions? Under the EU Damages Directive, the Commission is required to publish guidelines for national courts on the impact of surcharges on indirect purchasers, although they have not yet been published at the time of the implementation of these guidelines. In addition, the Commission is assessing its 2013 recommendation for the introduction of class action mechanisms in EU Member States. Although the Commission has indicated that it may propose further measures by July 2017, it has not yet done so. To what extent does antitrust legislation apply to vertical restrictions in agreements made by public bodies? The main case before the EU courts concerning private actions for damages is Courage/Crehan, a case referred by the British courts, in which the European Court of Justice states that private parties must be able to claim damages in the event of a breach of Article 101. The ECJ also clarified that infringement proceedings can themselves claim damages if, because of their weak negotiating position, it is not possible to say that they are fully responsible for the infringement. In particular, cases of vertical restrictions have been linked to the increase in e-commerce, such as competition/Samsung, in which the ECJ reviewed, in December 2016, the rules of jurisdiction for actions relating to monitoring restrictions in selective distribution systems. (For more information on private implementation, see Lexology Getting The Deal Through – Private Antitrust Litigation.) Public authorities in their decisions or guidelines Take into account restrictions on the retention of resale prices that apply for a limited period of time to the introduction of a new product or brand or a specific promotional or sales campaign; or, in particular, to prevent a retailer from using a brand as a “loss leader”? Clarification of the intent of “potential competitors” Vertical agreements between competitors (which are not covered by the category exemption regulation subject to certain exceptions) are considered to be competing firms.
The guidelines (paragraph 26) specify that a “potential supplier” of relevant products is a company capable of making the necessary investments, redirecting production to the products concerned and supplying the market in response to a small and sustainable increase in relative prices (supply-side substitutability) within one year.