Claves del derecho de redes empresariales. AAVV

Чтение книги онлайн.

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b. Ancillary Restraints doctrine and networks

      Exemptions to the application of the prohibition of agreements and practices restrictive of competition in European Law are organized in four different ways. Ancillary restraints doctrine, block exemptions, 101.3 Treaty criteria and de minimis rule. This last one is grounded in the opportunity principle that rules the action of the administration but in fact it has an influence on the private application of competition law that is not clearly justified.

      The criteria of 101.3 are grounded in an efficient competition balance recognizing competition as a means to obtain more, better and cheaper goods or services for more customers — quantitatively and geographically extended — and not as a goal in itself and its application produces the compensation of restriction of competition with these goals that are obtained through anticompetitive behaviour with the three limits it establishes. These rules are able to be applied in all kind of cases but if we observe the block exemption regulations we may conclude that in most cases they exempt, in both vertical and horizontal cases, stable business cooperation relationships that can be identified as cases of business networks.

      Accessory restraints doctrine, grounded in the idea that a necessary little evil shall not deprive us of a good, has also been applied until now only to a case — distribution and services franchising — that may be described as a vertical business network.

      It is quite difficult to modify a block exemption, as shows the actual negotiation about the substitution of the vertical restrictions block exemption. On the contrary, the evolution of a judicial doctrine may be easier to obtain since it suffices to convince a small group of persons among the best jurists in Europe, who act according to technical and justice considerations instead of political ones.

      In the case of vertical restraints, the risk for competition is generally low, with the exception of exclusionary effects or market sharing.

      We shall keep in mind that business networks — vertical and horizontal — are considered, both in national and community systems, as highly beneficial to the economy in general — efficiencies’ exponential growth — and to the modernization — today just the survival — of SMEs, which allow a reasonable benefits allocation among its members and consumers.

      Distribution networks in particular have been seen as positive in general terms on both sides of the Atlantic although the European Court of Justice denies the application of the rule of reason.

      The application of the ancillary restraints doctrine to horizontal business networks would be more problematic but the ground of the doctrine is general and it would be applicable also to these cases.

      In order to explore this possibility, we shall determine whether the intra-brand restrictions derived from the exercise of directive power and control which are inherent in networks’ governance are justified from the perspective of their incidental nature regarding a legitimate and desirable result as the existence of enterprise networks.

      In European Competition Law the concept of ancillary restraints covers any alleged restriction of competition which is directly related to conducting a major not restrictive operation, in our case the creation of a network contract, and which is objectively necessary and proportionate.

      In the case of distribution networks efficient territorial organization of the network members, for example, is directly related to network efficiency and indissolubly linked to it²⁰.

      Following with the example, an objective and abstract analysis of the need for the territorial organization — not necessary exclusivity — of the network suggest us its necessary character as the lack of organization determines that the operation could be performed only under more uncertain conditions.

      On the requirement of proportionality, we must check whether the restriction’s material and geographical extension and duration do not exceed what is necessary to perform the operation.

      Since in our case the restrictions linked to the efficient organization of the network are, in general, necessary throughout the life of the contract and sometimes after its extinction, such restrictions must be considered proportionate for the duration of the contractual relationship, without prejudice to the possibility of proving its lack of proportionality by the party alleging the infringement.

      It seems that we may assume that if the exercise of directive power within the network — contractual or organizational — has not important effects on inter-brand competition, such as exclusionary effects or severe market sharing, and that the application of the doctrine of ancillary restraints to the networks would allow the efficient organization of the network.

VI. SOME FINAL WORDS

      Business networks legal research seems to be one of the more challenging matters for Contractual Law in the next years. We hope that the group of researcher interested will increase and governments follow them for a more efficient regulation of business cooperation.

      CAPÍTULO 2

      Network Constitutions: a Response to the Crisis?

      GUNTHER TEUBNER

      INTRODUCTION

      In recent years, transnational corporations (TNC) were involved in a number of scandals that shocked the global public. Ecological catastrophes, like the Exxon Valdez, Shell in Nigeria, inhuman labour conditions, child labour, the repression of union members, the disastrous price policy during the Aids crisis in South Africa, the complicity of transnational corporations in corruption and human rights violations, and with special vigour, the recent corporate abuses in the banking crisis, drastically increased the public awareness of the negative effects brought about by the transnationalization of commercial activities. In parallel, these ramifications triggered a plethora of political initiatives aimed at regulating them through binding legal norms. However, both the strong resistance of transnational corporations against national and supranational regulations as well as the difficulties to achieve effective regulation via protracted international agreements led to the failure of many of these initiatives.²¹ Nonetheless, one result of this shortfall is particularly noteworthy. Instead of the aspired binding state regulations, a different species of transnational non-state legal regimes spread in huge numbers around the globe — the “voluntary” codes of conduct of transnational corporations.²²

      Today, these codes exist in various forms, yet two basic variants predominate. On the one hand, the heavy public criticism, disseminated by the media globally, and the aggressive actions of protest movements and civil society non-governmental organizations (NGOs) force numerous transnational corporations to develop corporate codes “voluntarily”. They commit themselves to standards in the issue areas labour conditions, product quality, environmental policies, consumer protection and human rights and promise their implementation (short and imprecise: “private” codes). On the other hand, the state world establishes — through agreements under international law or through the norms of international organizations — codes of conduct for transnational corporations (again, short and imprecise: “public” codes).

      How are the subjects of these private and public codes defined? It would be a misunderstanding to determine them as single formal organizations—TNCs, on the one side, and international organizations, on the other. Rather, a network revolution has taken place in both legal spaces. Extensive networks have developed between different organizations, which then facilitate the understanding of the entire configuration as the relationship between two different, mutually closed networks. On the one hand, private codes have already transcended the confines of individual companies. They have extended their validity СКАЧАТЬ