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HOW TO DRAFT CLAUSES
WHICH COMPLY WITH
REGULATION 330/2010
Fabio Bortolotti
Distribution contracts
1)
2)
3)
4)
Clause prohibiting active sales
Clause on duration (5 years)
Clause on resale prices
Clause on sales to unauthorized
distributors (selective distribution)
Prohibition of active sales
«The Distributor agrees not to actively
promote sales (e.g. through advertising,
establishing branches or distribution
depots) into the territories reserved by the
Supplier exclusively for himself or
allocated by the Supplier to other
exclusive distributors or buyers.»
Clause on duration
«This contract enters into force on the day of its
signature and shall remain in force until terminated
according to Articles 9 or 10, but shall in any case
expire (if not terminated earlier) after a period of five
years from the date of its entry into force. The
parties agree to meet at least three months before
the end of the five years' period in order to discuss
the possibility of entering into a new contract after its
expiration.»
Cause on resale prices
«The Supplier has established a list of
recommended resale prices which are made
known to the public. However, the Distributor
remains free to decide his pricing policy, provided
he does not practice excessively high prices which
may negatively affect the volume of sales.»
Prohibition of sales to
unauthorized distributors
(selective distribution)
«The Distributor agrees to sell the Products
only to end users or to authorized distributors
belonging to the selective distribution network in
the territory where the selective distribution
system is currently operated and in the
territories reserved by the supplier to operate
that system in the future.»
Agency contracts falling under
Article 101
1. Clause on active sales
2. Clause on resale prices
3. Clause on maximum duration ?
Clause on active sales
«The Agent agrees not to actively promote sales
(e.g. through advertising or visiting customers) in
the territories reserved by the Supplier exclusively
for himself or allocated by the Supplier to other
exclusive distributors or buyers.
He may take unsolicited orders from customers
established outside the Territory, which the
Principal is free to accept or refuse.»
Clause on resale prices
«The Agent has the right to grant discounts on
the part of the price representing his commission.
The Principal will deduct such discount from the
commission paid to the Agent.»
Clause on five years’ duration
It is strongly recommended not to include a
clause of this type in an agency agreement, since
it would warrant the agent’s right to indemnity at
the end of the five years period.
Also excluding post-contractual non-competition
clauses is not appropriate.
The conclusion is that it makes no sense to apply
Article 5 of regulation 330/2010 to agency
agreements.
Thank you for your kind attention!
Fabio Bortolotti