Does an Exclusivity Clause Risk Competition Law? A Danish and EU Primer

An exclusivity clause that stops an influencer from working with competitors is, at its core, an agreement between two undertakings that restricts one party's conduct toward third parties — exactly the kind of agreement competition law is written to watch. It's one of the 12 terms the contract checklist covers, and the practical guide to exclusivity clauses covers how the clause should be worded, how long it should run and what it should cost — this article goes one layer deeper and asks whether the clause itself can raise a competition-law problem.

This is a general legal primer from Make Influence, not legal advice for a specific situation. If the brand holds a significant market share in its category, or the clause is unusually long or broad, have it reviewed by a lawyer.

What competition law actually asks

Danish and EU law ask the same underlying question: does the agreement restrict competition on a market, and if so, is the restriction allowed anyway because it's too small to matter, or because it does more good than harm? An exclusivity clause is, in legal terms, a non-compete obligation placed on the influencer by the brand — that category of clause isn't automatically prohibited, but it is exactly the kind of term competition authorities look at when they assess so-called vertical agreements.

Two rulebooks asking (almost) the same question

A Danish brand is subject to both rulebooks at once: the Danish Competition Act (konkurrenceloven) for purely domestic matters, and TFEU Article 101 whenever the agreement could affect trade between EU member states. In practice, the two are built on the same template.

Is a brand-influencer exclusivity clause even a "vertical agreement"?

Here's the honest answer: it isn't settled. The VBER's definition of a vertical agreement covers agreements between undertakings operating at different levels of the production or distribution chain, relating to the purchase, sale or resale of goods or services. A brand buying a marketing service from an influencer could, on paper, fit that broad definition — but neither the Danish Competition and Consumer Authority (Konkurrence- og Forbrugerstyrelsen, KFST) nor the European Commission appears, as far as this research could find, to have publicly addressed whether an influencer counts as an "undertaking" in this specific sense, or whether a content-exclusivity clause is the kind of non-compete obligation the rules were actually written for. The rest of this article uses the doctrine as the best available framework for assessing the risk — not as a confirmed classification.

The safe harbours that make this a non-issue for almost every real deal

Even if an exclusivity clause technically counts as a vertical agreement, it's far from automatically a problem. What matters is the brand's market share in the relevant market — not the influencer's follower count, reach or engagement. An influencer with 500,000 followers signing an exclusivity deal with a brand that holds just 2% of the relevant Danish haircare market resolves itself: 2% sits far below both the Danish de minimis threshold for non-competitors (15%) and the EU VBER's 30% ceiling.

Hypothetical worked example, illustrative only: Brand X holds 3% of the relevant Danish market and signs a 90-day category-exclusivity deal with an influencer. Under both the Danish de minimis rule (15%) and the EU VBER (30%), 3% sits comfortably under the line — the agreement never triggers an individual assessment under § 8/Article 101(3), because it never gets there. The counter-example: if Brand X were instead one of only three real players in a small, consolidated category and itself held 35% of that market, the agreement would approach and cross the VBER's 30% ceiling — that's the point where a real assessment starts to make sense.

When it stops being theoretical — the two factors that actually matter

• The brand's market share in the relevant market. Not the influencer's reach. A brand with a dominant or near-dominant position in its category is the only realistic scenario where an exclusivity clause with a single influencer could genuinely raise a competition-law question.
• The clause's duration. The EU VBER only exempts non-compete obligations that run for 5 years or less (or are indefinite but tacitly renewable, provided the other party can genuinely renegotiate or switch supplier after that 5-year point). Even where the rule doesn't strictly apply to an influencer deal, the 5-year threshold is a sensible rule of thumb for when a clause starts to resemble the kind of long-term lock-in competition law is concerned with.

What this means for how you write the clause

For the vast majority of influencer collaborations, none of this changes how the clause should actually be drafted — see exclusivity clauses in influencer contracts for scope, duration and price. But two signals should get a lawyer involved before the clause is signed: the brand holds a significant or dominant market share in its category, or the clause is indefinite and runs beyond the contract's normal term — particularly relevant in a longer-running ambassador programme, where the clause often runs for the full length of the contract.

Decision framework

IF the brand's market share in the relevant category is low (a reasonable rule of thumb: under 15%), and the clause is time-bound → no practical competition-law risk, use the standard clause from the contract guide.

IF the brand holds a significant or dominant market share in its category → get the clause reviewed for competition-law risk before it's signed.

IF the clause is indefinite or runs materially beyond the contract's natural term → shorten it, or build in a genuine exit point after 5 years, regardless of market share.

IF you're unsure what the "relevant market" actually is → ask a lawyer rather than defining it yourself.

Common mistakes

• Assuming the influencer's follower count is what matters. Competition law looks at the brand's market share, not the influencer's reach.
• Assuming any exclusivity clause is automatically lawful because it's common in the industry. Common practice isn't the same as a legal assessment.
• Writing an indefinite clause with no exit right. That's exactly the kind of lock-in the VBER's 5-year threshold is built to watch for.
• Confusing competition-law risk with the ordinary contract questions — duration, price, how narrowly "competitor" is defined. The two are separate assessments, and the vast majority of clauses only need the second one.

Make Influence's perspective

We're not a law firm, and nothing in this article is legal advice. In practice, virtually every brand we work with sits far below the market-share thresholds that would trigger a real competition-law assessment — so the question rarely comes up in day-to-day contract drafting. That's our operational observation, not a legal conclusion, and it doesn't change the fact that a brand with a genuinely dominant market position should always get its own exclusivity clause reviewed independently.

FAQ

Are exclusivity clauses in influencer contracts illegal under competition law?

No, not on their own. Most fall within the de minimis threshold or the EU block exemption for vertical agreements, because the individual brand's market share is too low to trigger an assessment.

Does it matter how many followers the influencer has?

No. Competition law looks at the brand's market share in the relevant market, not the influencer's reach.

Does the EU's block exemption for vertical agreements apply to purely Danish agreements too?

Yes. Since 15 August 2022, Bekendtgørelse nr. 1164 of 6 August 2022 has applied the EU block exemption (Regulation (EU) 2022/720) to agreements with effect only in Denmark as well.

How long can an exclusivity clause run, from a competition-law perspective?

There's no fixed limit at low market shares, but the EU VBER only exempts non-compete obligations of 5 years or less. That's a sensible rule of thumb even where the rule doesn't strictly apply.

Do I always need a lawyer to look at the exclusivity clause?

No — only if the brand holds a significant market share in its category, or the clause is unusually long or broad. For an ordinary brand with a low market share and a time-bound clause, the competition-law risk is, in practice, theoretical.