COMPETITION • FRENCH LAW • RESTRICTIVE AGREEMENTS
An exclusive purchasing agreement is one in which one of the contracting parties commits to the other to purchase for resale the specified products only from that undertaking or from any undertaking designated by it to distribute its products (subsidiary or third party undertaking). Such an agreement is likely to have a restrictive effect on competition insofar as it limits access to the market by the supplier’s competitors.
Generally speaking, an unnecessary exclusivity requirement is anticompetitive. Exclusivity is only justified if it is required by technical or commercial conditions.
Furthermore, in order to be lawful, an exclusive purchasing agreement must not contribute significantly to a cumulative effect resulting from the interplay of similar contracts and leading to market foreclosure.
Since the adoption of Regulation No 2790/1999, replaced by Regulation No 330/2010, exclusive purchasing agreements fall under the category of non-compete obligations.
Under EU law the duration of the exclusivity clause must not exceed five years. Under French law, Article L. 330-1 of the Commercial Code limits to ten years the duration of validity “of any exclusivity clause by which the buyer, transferee or lessee of movable goods commits vis-à-vis his seller, transferor or lessor not to use similar or complementary objects from another supplier”. The Court of Cassation has clarified the respective scopes of application of the French and European rules regarding the duration of exclusivity: the European regulation is inapplicable to an agreement to which only undertakings from the same Member State are party and which concerns the resale of products within that Member State since there is no effect on trade between Member States.