Is a del credere agent considered a ‘genuine’ agent for the purposes of UK and EU competition law?

A ‘genuine’ agency relationship will fall outside the scope of Article 101(1) of the Treaty on the Functioning of the European Union (TFEU) and the Chapter 1 prohibition of the UK Competition Act 1998. Each jurisdiction now benefits from its own block exemption for vertical agreements:

1. •

   UK—The Competition Act 1998 (Vertical Agreements Block Exemption) Order 2022 (UK VABEO)

2. •

   EU—Commission Regulation (EU) No 2022/720, the Vertical Block Exemption Regulation (EU VBER)

A genuine agent for the purposes of UK and EU competition law occurs where:

1. •

   the property does not vest in the agent/the agent does not supply the contract services itself, and

2. •

   the agent does not bear any (or bears only insignificant) commercial or financial risk

A genuine agent working for the benefit of a principal ‘may…be treated as an auxiliary organ forming an integral part of the latter’s undertaking, who must carry out his principal’s instructions and