¿Queda algo por decir sobre cómo distinguir la agencia “genuina” de la que no lo es en el Derecho de la Competencia?

... the appropriate inquiry for discerning genuine agency should focus on the business justifications for the parties’ adoption of an agency model. That is, in the absence of the desire to get around the antitrust rules against vertical constraints, would the parties choose the contractual form of agency instead of distribution?

In Morrison, Posner posed the key question of how to distinguish between a “dealer” or “distributor” and a “sales agent”, noting that “these terms are not self-defining; nor have they fixed meanings independent of the purpose of definition.”141 He then probed into the premise of the resale price maintenance violations, which, he argued, must presuppose that “the middlemen–dealers or distributors–to which the rule applies have the capacity and incentive to set resale prices.”142 As he explained: “This in turn requires in the usual case that the middleman perform extensive functions in distribution, such as warehousing and delivery. If he is merely an order taker, his costs will be a trivial fraction of the total costs of the product, so that to make him determine the final price to charge the consumer would be telling the tail to wag its dog. On the other hand, the more functions in distribution the middleman performs, the less likely is the manufacturer to have the information he needs to set the final price… another complication … is that a sales agent may be hired precisely because of his expertise in determining market price; this is an important factor in the sale of private homes through brokers, but it does not turn a brokerage agreement into a price-fixing agreement…

A distributor is the holder of residual control rights over the property and he also owns (in the normal cases) 100% of the residual claims. On the other hand, an agent does not have residual control rights. An agent is therefore incapable of conspiring with its principal since the principal has the complete freedom to determine the price for his property (as long as he has not contracted out such rights)…

In Morrison, Posner also proposed a test for evaluating the efficient contractual form by asking whether the selling method is common in the industry. As stated by Posner: “If such selling were unusual in the defendant's industry, an inference might arise that it had been adopted to get around the rule; perhaps that is the best explanation for the result in Simpson.... ”

authorities should not lightly instate antitrust remedies that interfere with the contractual freedom of parties and force contractual change of bona fide arrangements in a manner which could adversely affect overall welfare and harm consumers. As argued by Justice Holmes in his perceptive dissent in Dr Miles: "I think that, at least, it is safe to say that the most enlightened judicial policy is to let people manage their own business in their own way, unless the ground for interference is very clear…The Dr. Miles Medical Company knows better than we do what will enable it to do the best business… so I see nothing to warrant my assuming that the public will not be served best by the company being allowed to carry out its plan."

Zhang, Angela Huyue, Toward an Economic Approach to Agency Agreements (September 2012). Available at SSRN: http://ssrn.com/abstract=2179673  or http://dx.doi.org/10.2139/ssrn.2179673