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shall not be covered by the exemption. However, there are certain excep-
tions.
As mentioned above, following the expiry of the agreement, any
direct or indirect obligation imposed on the purchaser, prohibiting it
from producing, purchasing, selling or reselling goods or services, is
considered to be beyond the scope of the exemption. Nevertheless, a
non-compete obligation may be imposed on the purchaser, provided
that it does not exceed one year from the expiration of the agreement,
with the conditions that the prohibition relates to goods and services
that compete with the goods or services which are the subject of the
agreement, it is limited to the facility or land where the purchaser oper-
ates during the agreement, and it is compulsory to protect the know-
how transferred by the provider to the purchaser.
In the case where the distribution agreement contains a clause
which is considered beyond the scope of the exemption, if such clause
is separable from the other clauses of the agreement, this clause shall
not be covered by the exemption, while the other provisions are
exempted. However, if the non-competition clause is inseparable from
other clauses of the distribution agreement, the agreement, as a whole,
shall not be covered by the exemption. Pursuant to the Guidelines, the
non-competition clause envisaged for the distributor in the agreement
shall be evaluated within the scope of the exemption following the ter-
mination of the contract, under certain circumstances. However, the
non-competition clause should not result in shut-down of the distribu-
tor’s activities, and should not create non-competitive circumstances.
Conclusion
Distribution agreements are considered to be within the scope of
the vertical agreements that are defined as agreements concluded
between two or more undertakings operating at different levels of the
production or distribution chain, with the aim of purchase, sale or
resale of particular goods or services. Within this context, distribution
agreements are precluded by competition rules, to the extent that they
are non-competitive, just like every other vertical agreement. Typical
provisions of distribution agreements, such as exclusivity, resale price
maintenance and non-competition clauses may not be covered by the
exemption of Communiqué No. 2002/2, under certain circumstances.
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NEWSLETTER 2015