Competition law
Both the individual activities of those involved in UK wine distribution, and the things they do in concert with others, may potentially be within the ambit of competition law. In assessing the need for compliance – and the risks of non-compliance – one should first consider whether the matter being assessed is within the jurisdiction of EU competition law rules. If it is, then those rules, rather than those of UK national law, must be applied. In the UK wine trade that is usually the case, and this article is therefore based upon the EU rules. It outlines the issues that are likely to arise in connection with the types of agency, distribution and joint venture agreements that are commonly entered into in the UK wine trade. It does not consider unacceptable activities such as cartels, tender-rigging, predatory pricing, and other things of that kind which competition law also regulates.
Agency agreements
A "genuine" agent is regarded as an integrated part of the producer's undertaking. Accordingly, competition law will not normally be a concern as between such an agent and his principal. However:
- Article 101(1) of the EU Treaty (formerly Article 81(1) of the EC Treaty) could apply to any "non-compete" provisions binding the agent, both during the contract and after its termination – see below;
- post-termination "restraint of trade" clauses applying to commercial agents are subject to limitations under the Commercial Agents Regulations – see restrictions between producers and agents.
One must look closely at the circumstances to see whether there is in fact a "genuine" agency for competition law purposes. The question is whether ........
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