The theory of the silos of exclusive agreements provides that an upstream producer with market power would use such exclusive trade restrictions to prevent a potential new entrant from having access to the vital inputs of a distribution network, which would ultimately prevent market entry, and allow the incumbent supplier to further increase its market share. Exclusive dealer agreements may also exclude competition at the dealer level. [vii] Standard Oil Co. of California v. United States, 337 U.S. 293 (1949) « The U.S. Supreme Court found that this requirement of the agreement was contrary to Section 3 of the 1914 Clayton Act because it restricted its retailers` access to other fuel and petroleum products channels and, as a result, competition was restricted in a substantial portion of the commercial line. » Exclusive distribution agreements can also function as an agreement providing an exclusive means/channel for the sale/distribution of goods, z.B offline or online. Under EU competition law, online sales are considered passive sales and possible restrictions on these passive sales are considered severe restrictions. In addition to silos, such restrictions on exclusive trade can have other anti-competitive effects, such as. B: the application of Article 101, paragraph 3, to agreements, notably by the Commission, has been the subject of controversy for years. For the most part, many commentators have criticized Article 101, paragraph 1, for applying on the whole, as it takes many agreements that do not harm competition at all. [lix] Article 2 of Regulation (EC) No. 1/2003 confirms that the burden of proof rests with the Commission, the NCA or the person who refuses an agreement before a national court to prove that it is contrary to Article 101, paragraph 3.
The Commission must consider the company`s arguments and evidence based on section 101, paragraph 3. Article 101, paragraph 3, provided for the emergence of exemptions by category by providing that the prohibition under Article 101, paragraph 1, could be declared unenforceable for both agreements and categories of agreements. Exclusive trade is an agreement to sell a product provided that the buyer takes over by the seller [xii] any (or actually) all the demand for that product. These agreements can have anti-competitive effects, but they can also lead to efficiencies. The main anti-competitive concerns are that such agreements could block the market sufficiently to compete in order to hinder competition. In an oligopolistic market, the first type of competitive imperfect market, a market where only a few sellers each offer a product similar or identical to that of other economists measure the dominant position of a small number of firms using statistics called « concentration rate », that is, the percentage of total production in the market provided by the largest companies in the market. [xiv] In such a market, oligopolistic trade agreements could support oligopolistic coordination by effectively assigning the market, making it difficult to increase market share by reducing prices. [xv] Some of the positive effects of such agreements are, as they could reduce uncertainty surrounding future sales at the contract price, reduce risk-bearing storage costs or costs, or give companies the contractual obligations they need to increase their capabilities in order to achieve economies of scale.