Sole Distributorship Agreements

Abstract

In his review of the development of “exclusive dealing” and the administrative and judicial attitude towards such business arrangements under United States antitrust law, one of the greatest American authorities on this subject, Professor Milton Handler of Columbia University, expressed the view: “Exclusives are not of transcendent importance either legally or economically. There are other practices of infinitely greater antitrust concern. ”5 It is not unlikely that one will in due course be justified in repeating this statement in respect of the antitrust law of the E.E.C., but at the moment it seems that the control of exclusive distributorship contracts is one of the major concerns of the Commission. Having regard to the very wide range of the prohibition of such agreements under Article 85 (1) as expressed in the Announcement,1 it seems expedient to refer in some detail to the relevant legal position both in the United States and the Member States of the E.E.C., especially in Germany and France, in order to understand and appreciate the creation of this new rule in European commerce which to a considerable extent also affects enterprises in non-Member States. These agreements are, generally without any difference in meaning, also described as exclusive dealing contracts, exclusive dealing and tying contracts, exclusive agency contracts exclusive agency contracts made with commercial agents, exclusive representation contracts, exclusive distribution contracts, exclusive territorial distributorship contracts, exclusive concession contracts (or, in all these instances, agreements respectively).2