The European Commission is seeking comments on commitments offered to it by a number of parties to its e-books investigation.

The European Commission is seeking comments on commitments offered to it by a number of parties to its e-books investigation.

In a previous article, we reported that the European Commission had opened a formal investigation after a number of major publishers switched to agency models (notably with Apple) for sales of e-books in the EEA.

That investigation had two possible areas of focus.

First, under EU competition law, competitors must decide independently the terms on which they do business with third parties. So if the publishers had agreed with each other to switch to an agency model - and to co-ordinate on key terms in any agency agreement - this would have been of concern to the Commission.

Second, and of potentially wider significance, was the question of whether the agency agreements 'worked' as a matter of EU competition law. If a distribution arrangement meets the (very strict) conditions for agency under EU competition rules, then a supplier - such as the publishers under investigation here - may control resale prices. If it does not, any attempt by a supplier to control selling prices is likely to amount to illegal resale price maintenance and therefore breach EU competition law.

Perhaps somewhat surprisingly, the Commission's preliminary assessment dealt exclusively with the first question, whilst leaving the second unanswered.

According to its press release, the Commission considers at this stage that the publishers may have breached EU competition rules by jointly switching to an agency model for the sale of e-books and agreeing on the terms of those agreements (in particular, an 'unusual' so-called 'most favoured nation') clause. A possible effect of this switch, in the Commission's view, may have been to raise the resale price of e-books in the EU.

In order to address these concerns, the Commission is considering entering into commitments with the publishers and with Apple.

In accordance with those commitments, the publishers would agree to terminate existing agency agreements for the sale of e-books and would not implement 'most favoured nation' pricing clauses for five years. And where any new agency agreement was entered into, the 'agent' would be largely free to set its own resale prices.

These commitments, if adopted, may resolve the Commission's concerns about the distribution of e-books in this case.

But important questions about how, or whether, an agency model can meet the strict requirements of EU competition law in a digital context may, at least for now, remain unanswered.