Competitive effects of most-favoured nation clauses
Produced in partnership with Dentons
Competitive effects of most-favoured nation clauses

The following Competition guidance note Produced in partnership with Dentons provides comprehensive and up to date legal information covering:

  • Competitive effects of most-favoured nation clauses
  • Types of MFNs
  • Economic rationale of MFNs
  • Theories of harm
  • Enforcement activities
  • Lessons to be learnt from past cases

Most-favoured nation clauses (MFNs, also called parity clauses) are vertical arrangements whereby the terms and condition of supply are set by reference to the terms and conditions applicable to other supply relationships.

MFNs have come under the scrutiny of antitrust authorities in the EU, in particular in the online space (eg E-books I, Amazon / E-books II, Booking.com, etc). But these cases do not mean that MFNs are systematically anti-competitive. In fact, their competitive effects are often ambivalent and require a careful case-by-case analysis.

Types of MFNs

The concept of MFNs covers a wide range of business configurations. MFNs can be classified in different ways:

  1. •

    across-sellers MFNs and across-customers MFNs

    1. ◦

      across-sellers MFNS are agreements whereby the seller’s price is constrained by the price charged by rival sellers; in particular, the seller undertakes that, if the buyer finds a rival seller offering the same product at better terms, the seller will match or beat those terms

    2. ◦

      across-customers MFNs are agreements whereby the seller’s price is constrained by the price charged by the same seller to other customers. In particular, the seller undertakes to sell to a buyer at the best price it offers to any other buyer

  2. •

    price MFNs and non-price MFNs. To date, most enforcement has focused on price MFNs. However, in the Amazon / E-books II case, the Commission took

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