COmpetition • European law • restrictive agreements
Competing undertakings may come together within a cooperative society in order to carry out their commercial policy operating under the same name. In that way they can determine methods of sale in line with the image of the brand. Such a system, which is theoretically similar to a vertical distribution agreement, is not in itself anticompetitive. The setting up of a cooperative association can nonetheless constitute a means of influencing the commercial behavior of participants in defiance of the free play of the competition, due to both the principle of “cooperative loyalty”, which is generally applied and the objects of the cooperative. Assessment is carried out in the light of a rule of reason: the restrictions imposed by the statutes, designed to ensure the loyalty of members, must not exceed what is necessary to ensure the smooth operation of the cooperative. This would not apply in cases of exclusive purchase or supply obligations with an obligation to pay a prohibitive severance fee.