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3. English summary
EC competition law makes a distinction between genuine and non‐genuine
agency agreements. According to current case law, article 81.1 EC is not ap‐
plicable to genuine agency agreements, while non‐genuine agency agree‐
ments are treated as any other vertical agreements in relation to competition
law. Consequently, hard restrictions may be imposed by a principle upon a
genuine agent, whose commercial relationship to its principal is very alike,
that of a subsidiary in a group of companies. However, genuine agents do
not automatically enjoy the single economic entity privilege that applies for
subsidiaries in a group of companies. Notwithstanding the difference in le‐
gal status between subsidiaries and agents, genuine agency agreements can
be regarded to affect competition to the same limited extent as agreements
between companies belong to the same group of companies. Hence, privi‐
leged treatment of genuine agency agreements is motivated by reference to
same effects as those that are a result of agreements within a group of com‐
panies.
In order to be outside the scope of article 81.1 EC, two main criteria must be
fulfilled. The first criterion related to the risk that the agent in incurring for
the commercial activities he undertakes as a result of the agency agreements.
Risk can be divided into financial and commercial risks. A prerequisite for
an agreement to be considered genuine is that the agent should bear none, or
very limited risk. The assessment must be made in relation to the real com‐
mercial situation that agency agreement establishes. The Commission’s
guidelines on vertical restraints consider the risk criterion to be the sole de‐
termining factor for an agreement to be treated as genuine.
Current case law provides, however, for a second and equally important
criterion. The risk criterion is indeed a necessary, but not sufficient criterion.
Hence, in addition thereto, it must be established that the agent is suffi‐
ciently integrated with the principal. One of the most important factors in
relation to integration is that the agent cannot act as an intermediary for
more than one principal – the agency agreement must, therefore, be exclu‐
sive. One of the key reasons to introducing a second criterion in the analysis
is the circumvention of competition rule could be possible. Bearing no risk
does not exclude the possibility of systematically using agency agreements
that – albeit seen individually are genuine – can set aside applicability of
article 81.1 EC on those agreements. As an example, independent dealers
may in such a case enter into agency agreements with all of its suppliers and