Tupe Distribution Agreement

There is no specific UK distribution legislation that regulates the relationship between a supplier and its distributor. The principles of common law apply to any agreement between the parties, as well as to certain general legal provisions in regulated sectors such as financial services. Therefore, apart from the limited circumstances below, suppliers cannot offer EEA distributors absolute territorial protection against parallel imports from other EEA regions, even if they have an exclusive distribution network. Among the general legal provisions that may be relevant to both distribution and agency relationships are (but not only): where a representative is a “commercial agent” within the meaning of the 1993 Commercial Agents Regulations (Council Directive), as amended (agency regulations). These regulations are based on the Trade Agents Directive (86/653/EC). This is the case where a salaried worker is an independent intermediary with the authority to negotiate the sale or purchase of goods in the name or on behalf of a client, when the agent and the supplier have entered into a written agreement. Computer software is “goods” within the meaning of the regulations (Software Incubator Ltd v Computer Associates Ltd [2016] EWHC 1587 (QB); the official transcript; QBD (Merc) (London); July 1, 2016). There are some exceptions to agency regulations, for example. B when the representative is involved in the sale and purchase of services and not in goods. The scope and application of this Agency regulation differs somewhat between the Member States of the European Economic Area (EEA), as does the approach of their respective jurisdictions. In general, buyers (and their customers) should in principle have the option of reselling without restrictions in the EEA. Limiting sales by the buyer outside certain areas or customers is a serious restriction that is allowed only under certain conditions, whether imposed directly (contractually) or indirectly (for example. B by an incentive system).

The systems for controlling the destination of goods (for example. B the differentiation of serial numbers) can be considered an illegal facilitation of market distribution. The European Commission is currently investigating video game publishers and tour operators for restrictions on online distributors who believe they are discriminating against their customers because of their place of residence (“geoblocking”) and a market lockdown (see question 17). It is highly unlikely that a distribution agreement, in the case of a merger, could be subject to the Merger Control Act of Enterprise 2002, as amended by the Enterprise and Regulatory Reform Act of 2013. There should be situations in which one company receives in relation to another: what are the distribution structures available to a supplier? When this first hurdle is overcome, the second task is to determine which employees are assigned to the organized group. It may be tempting to use a simple “time” test and conclude that all employees who spend 50% or more of their time providing distribution services are “assigned” for these purposes and are therefore transferred to the supplier when they resume distribution activities. While the time required to carry out distribution services by a worker is a relevant factor, it is inconclusive.

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