EU DISTRIBUTION LAW EU Distribution Law Fourth Edition JOANNA GOYDER Freshfields Bruckhaus Deringer, Brussels OXFORD – PORTLAND, OREGON 2005 Hart Publishing Oxford and Portland, Oregon Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 5804 NE Hassalo Street Portland, Oregon 97213-3644 USA Distributed in the Netherlands, Belgium and Luxembourg by Intersentia, Churchillaan 108 B2900 Schoten Antwerpen Belgium © Joanna Goyder 1992, 1996, 2000, 2005 First edition published 1992 Second edition published 1996 Third edition published 2000 Fourth edition published 2005 Joanna Goyder has asserted her rights under the Copyright, Designs and Patents Act 1988, to be identified as the author of this work Hart Publishing is a specialist legal publisher based in Oxford, England. To order further copies of this book or to request a list of other publications please write to: Hart Publishing, Salter’s Boatyard, Folly Bridge, Abingdon Road, Oxford OX1 4LB Telephone: +44 (0)1865 245533 or Fax: +44 (0)1865 794882 e-mail:
[email protected] WEBSITE: http//www.hartpub.co.uk British Library Cataloguing in Publication Data Data Available ISBN 1–84113–550–X (hardback) Typeset by Hope Services (Abingdon) Ltd. Printed and bound in Great Britain by MPG Books, Bodmin, Cornwall For my father (1938–2004) Contents Table of Cases Table of Legislation 1. European Union Law 1.1 1.2 1.3 1.4 1.5 1.6 What is the EC? And the EU? EU Institutions What are the Sources of EU Law? Where is EU Law to be Found? EU Law and National Law What does EU Distribution Law Consist of? 2. EU Competition Law Key Points Key Texts 2.1 Introduction 2.2 Article 81(1) 2.3 Article 81(2) 2.4 Article 81(3) 2.5 Article 82 2.6 Extraterritorial Application 2.7 Community Competition Rules Versus National Rules 2.8 Procedural Aspects of Articles 81 and 82 3. Distribution Agreements Key Points Key Texts 3.1 Introduction 3.2 How does EU Competition Law Treat Distribution Agreements? 3.3 Does the Agreement Infringe Article 81(1)? 3.4 Network Effect? 3.5 Does the Block Exemption Regulation Apply? 3.6 Does Individual Exemption Under Article 81(3) Apply? 3.7 Horizontal Distribution Agreements 3.8 Article 82 xiii xxxix 1 1 2 6 10 11 14 17 18 19 18 19 29 30 34 40 41 43 63 63 64 65 66 69 83 84 96 103 104 viii CONTENTS 4. Selective Distribution Key Points Key Texts 4.1 Do Selective Distribution Agreements Infringe Article 81(1)? 4.2 Clauses not Violating Article 81(1) 4.3 Exemption Under Article 81(3) 4.4 Clauses Unlikely to Benefit from Exemption Under Article 81(3) 4.5 Block Exemption Regulation for Motor Veh