Non-compete obligations are quite popular with Moldovan business community, in particular in case of franchising or agency agreements. However, in case of other commercial agreements (such as distribution, for instance), non-compete obligations, still represent a subject of debates among practitioners since these could be regarded as a limitation to contractual freedom.
The Regulation goes beyond a mere definition of non-compete obligations and purports to become a self-standing piece of legislation in this filed.
Thus, according to the Regulation a non-compete obligation is a „direct or indirect obligation not to manufacture, purchase, sell or resell goods or services which compete with the contract goods or services […]”. Furthermore, „the obligation of the buyer to purchase from the supplier more than 80% of the buyer’s total purchases of the contract goods or services and their substitutes on the relevant market, calculated on the basis of the value of the purchases in the precedent year” would be as well qualified as a non-compete obligation.
Non-compete obligations are allowed only if certain conditions are met, as follows:
1. non-compete obligation effective for the period of agreement’ validity is of fixed term, and such term does not exceed 5 years. A non-compete obligation for an indefinite term or for a longer period shall be null and void. Longer periods of non-compete clause are allowed, however, when the contract goods or services are resold by the buyer from land and/or premises owned by the supplier or leased by the supplier from third parties.
2. post agreement non-compete obligations:
– do not exceed 1 year, and
– relate to goods and services which compete with contractual goods and services, and
– manufacturing/purchase, sale or resale is made from the point of sale at which the buyer operated during the contract period, and
– are necessary to protect the know-how transferred from the supplier to the buyer.
3. in a selective distribution system, non-compete obligations are imposed in order to cause the members of such system to refrain from dealing with competing brands in general. It is not allowed however, to prohibit the members of a selective distribution agreement to sell the brands of a particular competitor. This prohibition aims to prevent the boycotts of particular competing suppliers.
