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the basis of specific criteria and where these licensees undertake not to
sell the contract products to unauthorized distributors.
Where undertakings party to the agreement are not competitors,
the exemption granted by Communiqué No. 2008/2 shall not apply to
the agreements in the event active or passive sales to end users are
restricted by a licensee carrying out activities at the retail level without
prejudice to the right to prohibit a member of a selective distribution
system from carrying out activities at an unauthorized place.
As per, Guidelines on the Application of Articles 4 and 5 of the Act
No. 4054 on the Protection of Competition to Technology Transfer
Agreements, in cases particularly where the licensee is obliged to
establish a certain type of distribution system such as exclusive distri-
bution or selective distribution according to the license agreement, dis-
tribution agreements concluded for the purposes of implementing such
obligations must, in order to be covered by a block exemption, comply
with Communiqué No. 2002/2.
Non-compete Obligation in the Selective Distributor Systems
In accordance with Art. 5 of Communiqué No. 2002/2, the exemp-
tion granted shall not be applied to the obligation not to sell the brand-
ed product of designated competing providers, as imposed on the
members of the selective distribution system.
Another non-competition obligation practice that is not authorized
is the prevention of the sales of a certain competitor’s products by the
members of a selective distribution system. The supplier of a selective
distribution system may mandate that selected buyers sell its own prod-
ucts exclusively, and refrain from selling any competing products.
However, it may not allow the sale of the products of some of its com-
petitors while preventing others from using this system. In other words,
in a selective distribution system, non-competition obligations must
either cover all competing products, or none of them.
As to Art. 6 of Communiqué No. 2005/4, exemptions shall not
apply to any direct or indirect non-compete obligation regulated in
agreements in terms of the sale, maintenance and repair services, or
spare parts of new motor vehicles.
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NEWSLETTER 2015