125 / 522
beyond the scope of the exemption. In accordance with Article 2.1 of
the Guidelines on Explanation of the Block Exemption Communiqué
on Vertical Agreements numbered 2002/2 (“Guidelines”), entitled as
“Resale Price Maintenance,” the producer determining a fixed or min-
imum resale price on behalf of the distributor, is prohibited. However,
the producer may maintain a maximum or suggested price for the dis-
tributor, unless this determination reaches a level where it constitutes a
determination of a fixed or minimum resale price. In order for the
determined prices not to become fixed or minimum resale prices, it
should be explicitly stated either in the price lists or on the products
that such prices are the maximum or suggested prices. Within this
framework, it should be emphasized that in the event where the resale
price maintenance of the producer exceeds the level of determination
of suggestion or maximum prices, and imposes such prices upon the
distributor, this distribution agreement shall not be covered by the
exemption.
Non-Competition Clause
Non-competition clause is defined under Article 3/d of
Communiqué No. 2002/2, entitled as “Definitions.” According to that
definition, a non-competition clause is “
…any kind of direct or indirect
obligation preventing the purchaser from producing, purchasing, selling
or reselling goods or services that compete with the goods or services
which are the subject of the agreement.
” In addition, “
taking as the basis
the purchases of the purchaser in the previous calendar year, any oblig-
ation imposed on the purchaser, directly or indirectly, that is more than
80% of the goods or services in the relevant market, and which are the
subject of the agreement, or that of substituted goods or services, be pur-
chased from the provider, or from another undertaking to be designated
by the provider, is also considered as a non-compete obligation.
”
Article 5 of Communiqué No. 2002/2 determines the scope of a
non-competition clause for the distributors. According to the related
provision, in cases where the non-competition clause exceeds five
years, or is fixed for an indefinite term, or prohibits the distributors to
produce, sell, purchase or resell the goods or services following the ter-
mination of the agreement, or bans the members of the selective distri-
bution system from selling competitor-branded products, such clause
COMPETITION LAW
109