Tips
Below you will find an overview of clauses that are generally allowed under competition law. Please note, whilst generally the below-mentioned tips are compatible with competition law, the exact competition law assessment is dependent on various factors, such as market shares, barriers to entry, efficiencies, etc. An individual competition law assessment may be necessary to ensure compliance with competition law.
- Imposing a maximum resale price.
- Agreeing on a non-compete for a period of less than five years.
- Recommending a resale price.
- Agreeing on a fixed compensation for brick-and-mortar stores.
- Requiring of your retailers in a selective distribution system that they have at least one brick-and-mortar store.
- Agreeing on qualitative requirements with respect to the websites of your distributors.
- Differentiating in price between brick-and-mortar shops and click-and-brick shops.
- Temporarily restricting (up to a maximum of two years) of sale by internet of a new product (under conditions).
Tricks
Below you will find an overview of clauses that are generally considered anti-competitive and that, absent a positive individual competition law assessment, should be avoided.
- Agreeing on minimum or fixed prices and/or fixed margins.
- Restricting the territory into which, or the customers to whom, the distributor may passively sell the contract goods or services (unless you apply a selective distribution system).
- Prohibiting passive and/or internet sales.
- Setting up a compensation system that favours offline sales over online sales (dual pricing).
- Agreeing on a non-compete for the duration of more than five years (unless exceptional circumstances).
