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ot be able to work successfully in a different country and is better for Jonathon to have separate agents in each country.

Agency and Competition Law

If Jonathon wants to appoint an agent without infringing any EC Competition Provisions, he should be aware of the extent of responsibility he will pass to him. The definition of Commercial Agent is given in Regulation 2(1) of the Commercial Agents (Council Directive) Regulations 1993: 'a self-employed intermediary who has continuing authority to negotiate the sale or purchase of goods on behalf of the principal, or to negotiate and conclude the sale or purchase of goods on behalf of and in the name of the principal'.

Article 81(1) of the EC Treaty prohibits agreements between undertakings; decisions by associations of undertakings and concerted practices which may affect trade between Member States and which prevent restrict or distort competition. These agreements shall be void according to 81(2).

In Hofner and Elser v Matrocton is stated that: 'The concept of an undertaking encompasses every entity engaged in economic activity regardless of the legal status of the entity and the way it is financed'. If Jonathon appoints an agent it will be an agreement between economically independent undertakings because it will be an economic activity where he will offer his goods on the market by using agents on a concerted practice.

Section II of the Guidelines on Vertical Restraints deals with vertical agreements which fall outside Article 81(1). Vertical agreements are defined by Article 2(1) of the Block Exemption Regulation as 'agreements or concerted practices among undertakings each operating, for the purposes of the agreement, at a different level of the production or distribution chain, under which the parties may purchase, sell or resell certain goods or services'.

Articles 12-20 of the Guidelines set out criteria for the assessment of agency agreements. Article 81(1) does not apply to agreements of minor importance and to genuine agency agreements.

Paragraph 13 of the Guidelines states that in 'genuine agency agreements, the obligations imposed on the agent as to the contracts negotiated and/or concluded on behalf of the principal do not fall within the scope of application of Article 81(1). The determining factor in assessing whether Article 81(1) is applicable is the financial or commercial risk borne by the agent in relation to the activities for which he has been appointed as an agent by the principal.'

Financial and Commercial Risk

There are two types of financial or commercial risk. There are the risks that are directly related to contracts concluded and negotiated by the agent on behalf of the principal and there are those that are related to market-specific investments, risks that the agent undertakes in order to be appointed. The agreement is a genuine agency agreement falling outside Article 81(1) if the agent does not bear any of these two types of risk. It is important for Jonathon not to pass to the agent any financial or commercial risks if he doesn't want to infringe any EC competition provisions.

Paragraph 15 provides that the agreement falls outside article 81(1) where the agent bears no or only insignificant risks in relation to either of these matters : 'In such a situation, the selling or purchasing function forms part of t本论文由英语论文网提供整理，提供论文代写，英语论文代写，代写论文，代写英语论文，代写留学生论文，代写英文论文，留学生论文代写相关核心关键词搜索。