Claves del derecho de redes empresariales. AAVV

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СКАЧАТЬ group of rules and court doctrines — with variable relevance in the Law of the EU member states, because they are outside of the harmonized area — are not enough to rule in an efficient form the relationships between third and network.

      The doctrine of contracts connexion¹³ and the revision of privy doctrine try to solve these problems but there is no general acceptation of their conclusions.

      A network legal framework explains more accurately the cases in which a direct action shall be accepted, generally against the network head but also against another network member. Discussion over liability in groups of companies may help us to understand these problems and to find solutions. Execution of network head’s instructions or diligent application of its directives shall be enough justification to admit the direct liability of the network head when the conduct of the member causes damage.

b. Bankruptcy in networks

      The network members or the network head may be declared in bankruptcy. The more important effects on the network are produced in the second case. The two main questions in this field are the effects of bankruptcy without liquidation and with continuity of the activity in network contracts, being these long term contracts with successive execution needed to maintain the bankrupted company activity, and the network members possibility to finance, take participation or purchase the network head before or during the bankruptcy procedure¹⁴.

      The bankruptcy of the network head produces severe consequences on the members in terms of goodwill, continuity of its own business, and leadership of the network, but these damages are not illicit and in general the members are not or very limited creditors of the network head. The bankruptcy procedure focusing on creditors tuition ignores the network members problematic and does not provide for them any special remedy or particular position in the bankruptcy procedure.

      These are cases where the insolvent debtor’s business is susceptible to be restructured, in which economically linked firms are competitive in the market and the losses are caused by reasons not affecting the network members such as a corporate cost structure that does not reflect income from the typical activity, by an excessive reliance on external financing, by speculative investments, by the implementation of new production or research lines or foreign development activity undertaken by the insolvent debtor, by inadequate risk management, by internal business of the debtor bankrupt, or simply by extraordinary and extravagant personal expenses incurred by the debtor bankrupt.

      As Bankruptcy Law is not a harmonized field in Europe, national legal systems present important differences. Talking from the Spanish experience it will be necessary that the bankruptcy administration and the Judge may identify in a simple and clear way which are the network companies. In some cases, such as franchising this may be relative easy but in other ones like outsourcing it may be more difficult.

      Related companies present in procedure shall also be heard by the judge before he or she decides about the total or partial termination or suspension of business or about the closure of offices, facilities or production units if they are essential for the development of the economic activity on which the network depends like, for example, the research and development department in the case of networks based on software licenses or contracts for technology transfer.

      Possible improvements of the settlement deal with two issues: the proposition of a convention and the order of deliberation of a proposed convention in the Assembly of creditors, if there is a plurality of proposals.

      It seems appropriate to give preference in the discussion to the proposals of network members, at least when they are supported by a significant percentage of creditors, giving them the possibility to be discussed immediately after the rejection of the proposal by the debtor bankrupt.

      Regarding the liquidation, it seems appropriate to recognize an independent right to network members to make comments or propose modifications to the settlement plan presented by the bankruptcy administration to the court, similar to the one held by workers.

      The network members should be heard by the judge, just like workers of the bankrupt debtor’s business are, in the case of the joint sale of the company or the production units whose activities have a direct connection with the network activity.

      In case of a separate auction for the rights and assets belonging to the active mass there could be a right of first refusal with respect to the bankrupt debtor’s assets which are essentials to the efficient pursuit of the activity or to maintain the competitiveness of the network.

      The special interdependence of networks members justifies in these cases a priority right to take the control of the other member specially if it is the network head, before or during the procedure. For creditors this has the advantage of increasing the bankrupt solvability, and it ensures the continuity of the network activity — which in many cases it is the best way to be paid —. For the members this also implies the continuity of their own business and, if it is the case, the continuity of network leadership, in this case collective.

      An efficient legal network framework should deal with these questions and include the same or similar solutions.

V. NETWORK AND PUBLIC INTEREST PROBLEMS

      Networks are also relevant from the point of view of public interest. Networks often produce external benefits, from cultural to ecological, as a consequence of its interdependent activity. But we will now focus only on the interest in maintaining a workable competition for the benefit of the market and all its participants, mainly the consumers.

      On this field there are many network issues in relation with networks mergers¹⁵, networks presence in the market in comparison to independent sellers or buyers, abusive practices in networks with impact on the market, and grounds of exemption (Block exemptions and ancillary restraints doctrine¹⁶).

      We will discuss two of these questions, namely the abuse of dependence and the possibility to extend the application of ancillary restraints doctrine in the field of networks.

a. Abuse of dependence in networks

      Business relationships in networks are different than hierarchy or market relations as a consequence of the interdependence of its members. This interdependence can be transformed in some cases in dependence understood as the absence of an equivalent alternative for one of the parties. This includes the absolute absence or the existence of a not reasonable alternative in economic terms, — for example, a producer who sells 100% of its production to a big surface and has done specific investments which cannot be amortized and who cannot place its production in the market —, or a member of a wine second degree cooperative who produces bottled wine when as a consequence of strategic alliances (network/network connexion) with a foreign importer the ownership of the successful trademarks belongs to the second degree cooperative. In these cases the cost to leave the second degree cooperative is not reasonable in economic terms.

      The abuse of dependence is not ruled in a uniform way neither in European Law nor in the different laws of the member states. European Courts created the doctrine of relative abuse to deal with cases in which the abuse implies a negative effect over the competition in the market following the German and French legal conceptions. In Spain the abuse of dependence is an unfair competition conduct — art. 16.2 LCD¹⁷ — that may have antitrust relevance through article 3 LDC¹⁸ if it affects the public interest to maintain a workable competition in the market. Opposite to this line of regulation, Italy regulates the abuse of dependence in civil law as a private matter.

      The abuse of dependence has an impact in the formation of the contractual agreement, as an unfair competition conduct, and it may lead to a risk for the workable competition in the market in some cases¹⁹. A legal network framework shall deal with all these three aspects and not consider them СКАЧАТЬ