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Selective distribution: An overview of EU and National case law

Stephen Kinsella, Rosanna Connolly, November 2011, e-Competitions, n°39750

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1. Introduction

The purpose of this foreword is to summarise the main issues related to selective distribution that have been encountered at national level as set out in the eCompetition articles in this special issue, and contrast them with the EU position.

Selective distribution agreements are "almost always used to distribute branded final products" [1]. They limit both the number of authorised distributors (through the use of objective, qualitative selection criteria linked to the nature of the product) and the possibilities for resale of the contract goods by the selected distributors. The European Commission in its Guidelines on Vertical Restraints outlines some of the possible anti-competitive effects of this method of distribution. These effects include the reduction of intra-brand competition, the foreclosure of certain types of distributors, and the facilitation of collusion between suppliers or buyers [2]. The European Commission is also concerned with the cumulative effect of selective distribution (i.e., when the majority of suppliers apply selective distribution) [3].

The 37 articles in this issue analyse national cases and NCA decisions spanning the last decade or so. A few themes emerge upon review of this collection, some of which can also be seen at EU level. Challenges to the legality of selective distribution schemes have included arguments based upon the nature of the products and the criteria for selected distributors used by suppliers. In addition, the limits that are put on the resale of goods by suppliers – for example, in relation to how, and where the products are sold – are prevalent throughout the series. The role of the internet as a distribution channel has also been the focus of some national attention, in particular in France. Some articles touch upon whether the effect on competition caused by a selective distribution network are appreciable. Concerns over the foreclosure of potential distributors from a selective distribution network (and in some cases exclusion of historic distributors from a newly created selective distribution network) can be seen in a number of these articles. The importance of the block exemption of vertical agreements as set out in Regulation n° 2790/1999 EC [4] (which has since been replaced by Regulation (EU) n° 330/2010 [5]), in particular in satisfying the market share threshold for that Regulation to apply, can be witnessed in a number of these cases. From a more practical standpoint, one can see the possibility of interim relief being used by both suppliers and distributors. Sometimes this action is taken in conjunction with a complaint to a competition authority. A couple of these cases demonstrate the difference in the analysis undertaken in interim relief cases compared with full cases.

2. Criteria For Selective Distribution

In line with previous decisions of the EU courts, the European Commission considers that purely qualitative selective distribution generally falls outside the prohibition in Article 101(1) Treaty on the Functioning of the European Union ("TFEU") [6] for lack of anti-competitive effects provided that three conditions are satisfied [7]. The first condition is that the nature of the product must legitimately require a selective distribution network. Secondly, resellers must be chosen on the basis of objective, qualitative criteria that are laid down uniformly and are not applied in a discriminatory manner. Thirdly, the criteria must not go beyond what is necessary.

Taking each condition in turn, in L’Oreal, the Court of Justice of the European Union ("CJEU") stated that it was necessary to consider "whether the characteristics of the product in question necessitated a selective distribution system in order to preserve its quality and ensure its proper use, and whether those objectives are not already satisfied by national rules governing admission to the re-sale trade or the conditions of sale of the product in question" [8]. Selective distribution systems based upon qualitative criteria have been justified for "high quality and technically advanced consumer durables" [9], as well as in other economic sectors given the "special nature of those products as regards their distribution" [10]. Examples of selective distribution being used for, among others, electronic equipment [11], luxury cosmetics [12], and newspapers [13] are found in the case law of the CJEU and General Court, as well as the decisional practice of the European Commission.

The articles in this collection demonstrate no great divergence between the European and national approaches, and this collection provides examples of selective distribution being used (or attempted to be used) for a wide variety of goods including bicycles, heart rate monitors, medicines, luxury perfumes and cosmetics, and diamonds.

In interim proceedings in Brandalley [14],the French court (Tribunal de Grande Instance de Strasbourg) rejected the claims that athletic footwear were neither technical nor luxurious products. It found that the products were technical products which required investments in research and development and had a specific image in the eyes of consumers, thereby justifying the selective distribution network.

In LCJ/Diffusion/La Roche Posay [15]the high technicality and quality of the derma-pharmaceutical products justified the need for selective distributors who were able to organise a dedicated sales counter where advice would be available from a qualified seller, such as a pharmacist or dermatologist. A similar approach (also for La Roche products) was taken in Greece in Lavicosmetica [16].

The CJEU has found that selective distribution agreements accord with EU competition rules provided that the resellers are chosen on the basis of objective criteria of a qualitative nature relating to the technical qualifications of the reseller and the suitability of the reseller’s trading premises, and that such conditions are laid down uniformly for all potential resellers and are not applied in a discriminatory manner [17].

The national cases provide examples of both the types of criteria imposed and the claims made surrounding these criteria. For example, the Croatian Competition Authority (Agencija za zastitu trzisnog natjecanja) (AZTN) found that qualitative criteria related to retail locations (such as retail space, marketing, personnel, equipment, etc.) which applied equally to agents selling to end users and to wholesalers (who sold on to third parties primarily for further distribution), could not be justified for wholesalers who also sold products other than the products of the supplier in that case. The AZTN found that the criteria amounted to "fixing of other trade conditions" prohibited in the Croatian equivalent of Article 101(1)(a) TFEU [18].

Suppliers have also referred to their criteria to try to demonstrate that potential distributors were validly excluded from the selective distribution system because they did not fulfil the criteria. For example, a bicycle manufacturer, Batavus, refused to admit Vriend (who had previously been a distributor of Batavus bicycles for 35 years) into its new selective distribution network on the grounds that it did not fulfil one of the qualitative selection criteria. Batavus argued that Vriend had behaved in a way that was harmful to Batavus and its products, causing a breach of trust. Although refraining from concluding whether this refusal contravened the national competition law, the Court did conclude that Batavus wrongfully denied Vriend access to its selective distribution network [19].

In relation to the third criterion, the CJEU has also stated that "[f]inally, inquiry should be made as to whether the criteria laid down do not go beyond what is necessary" [20].

Elsewhere the Hellenic Competition Authority had considered in Lavicosmetica [21] that the requirement that resellers have a constant presence of a dispensing chemist during working hours in order to join the network for distribution of luxury cosmetics was disproportionate where there was no certainty about when the products would start to be delivered because the supplier would not commit to a specific period of time for execution of the reseller’s orders. However, the Administrative Court of Appeal in Athens held that the condition was qualitative and legitimate given the nature of the products and the need to preserve their quality and ensure their proper use.

Among other infringements, the French NCA has found that a provision in selective distribution agreements aimed at restricting the resale of heating products exclusively to professional fitters went beyond legitimate safety requirements, and required the agreement to be amended [22].

3. The Block Exemption Regulation

A selective distribution scheme will be presumed to fall outside Article 101(1) TFEU provided that the conditions of the European Commission’s Vertical Block Exemption Regulation are met. These conditions include satisfaction of the market share thresholds and that the agreement contains no "hardcore" restrictions.

One of the aspects that is examined throughout many of these articles is the importance of falling within the Vertical Block Exemption Regulation. This is especially the case in interim proceedings.

Given that the majority of these articles preceded entry into force of Regulation n° 330/2010, they concern the conditions in the previous Vertical Block Exemption Regulation. Among other conditions, in order for the block exemption provided in Regulation 2790/1999 to have applied, the supplier could not exceed 30% share of the market (unless exclusive supply [23] was involved, in which case, the buyer’s market share was also considered). The new vertical regime under Regulation n° 330/2010 requires that neither the supplier’s share nor the buyer’s share exceed 30% of the market.

In Batavus, the Dutch court found that the respondent had adduced sufficient evidence to support its claim that the market share of the defendant exceeded 30%, but refused to assess, in the forum of interlocutory proceedings, whether the selective distribution system would fall within the individual exemption in Article 101(3) TFEU [24].

In another case, although a supplier argued that its new distribution system was an exclusive distribution network, a Dutch court found in interim proceedings that the system was more akin to a selective distribution scheme. The scheme was based not on territory, but on the nature of the products (so that the applicant in that case would only be qualified to sell one specific range of products). The defendant had not provided evidence of its market share, and had explicitly rejected having set up a selective distribution system. No analysis as to whether this fell within the block exemption was undertaken. Instead, the court found that the selective distribution agreement fell within the prohibition in Article 101(1) TFEU and was void. The authors comment that the case is striking given that there was no evidence demonstrating that the agreement restricted competition [25].

In addition, the Court of Appeal of Colmar overruled two interim orders in favour of Puma over online resellers because Puma had not properly established the legality of its distribution network. Whilst the court of first instance had accepted Puma’s market share on a worldwide basis, on appeal the court decided that the relevant market share was the European share (although the authors question why this was the case when the relevant market was defined to be national in scope) [26]. The Court of Paris also found the market to be broader than that submitted by the appellants, such that the 30 % threshold in Regulation 2790/1999 was not exceeded and the system fell within the block exemption [27].

The new vertical regime under Regulation n° 330/2010 requires that neither the supplier’s share nor the buyer’s share exceed 30% of the market. As noted in one of the articles, the purpose of this change is so "that the Commission achieves its objective of not applying the "safe harbor" to restrictions of competition resulting from buyer power, while maintaining an adequate level of legal certainty for the businesses involved" [28]. Indeed in the Batavus litigation, the appeal court in the Netherlands ruled that termination by the supplier of the agreement under pressure from competing distributors was a concerted practice [29].

Given that some national courts have encountered some issues with the previous market share threshold, it will be interesting to see how this new test under Regulation n° 330/2010 affects national cases.

4. Hardcore Restrictions Of Competition

Selective distribution schemes containing hardcore restrictions of competition do not benefit from the block exemption scheme, and are unlikely to benefit from an individual exemption under Article 101(3) TFEU. These "hardcore restrictions" are found in Article 4 of Regulation n° 330/2010. They include the fixing of minimum resale prices, restrictions on component suppliers selling components as spare parts to the buyer’s finished product and certain types of restriction on the customers to whom, or the territories into which, a buyer can sell the contract goods. There are exceptions to the latter, including, the restriction of sales by members of a selective distribution system to unauthorised distributors within the territory reserved by the supplier to operate that system, and restriction of sales to end users by wholesalers. There are further hardcore restrictions that are specific to selective distribution. Any restriction on active or passive sales to end users by distributors at the retail level of trade, without prejudice to the possibility of prohibiting a member of the selective distribution system from operating out of an unauthorised place of establishment [30], is considered to be a hardcore restriction of competition. Also black listed is the restriction of cross supplies between distributors within a selective distribution system, including those operating at different level of trade [31].

a) Restrictions on active and passive sales

There are articles covering these restrictions from France, Greece and Poland [32]. Although mainly related to abuse of dominance on Greek market for instant coffee, the Hellenic Competition Authority found that a supplier of coffee had infringed Article 101(1) TFEU by prohibiting its distributors from engaging in active and passive sales to customers who were already served by another distributor in the region [33].

The new vertical guidelines, like the old vertical guidelines, generally treat internet sales as a form of passive selling. They include more guidance on internet selling, such as examples of acts which the European Commission would regard as hardcore restrictions [34]. The articles in this special issue provide examples of NCAs and national courts facing the challenges posed by restricting use of the internet [35]. Given that the issue of online selling was discussed extensively during the revision of the EU’s rules on vertical agreements, and that we now have new rules in place, we have limited our comments to just one of these cases because of the recent ruling of the CJEU in that case.

Pierre Fabre Dermo-cosmétique’s (Pierre Fabre) distribution agreements contained a prohibition on internet sales. The French NCA found that this was contrary to competition law and ordered Pierre Fabre to amend its distribution agreements to allow the products to be sold on the internet [36]. This decision was appealed and the appeal court referred to the CJEU for a preliminary ruling as to whether a general and absolute ban on Internet sales by approved distributors does constitute a "hardcore restriction" on competition by object within the meaning of Article 101(1) TFEU [37].

On 13th October 2011, the CJEU delivered its judgment in Pierre Fabre Dermo-Cosmétique SAS v Président de l’Autorité de la Concurrence and Ministre de l’Économie, de l’Industrie et de l’Emploi [38]. The CJEU ruled that a contractual clause requiring sales of cosmetic and personal care to be made in the physical space where a qualified pharmacist was required to be present, resulting in a ban on internet sales, amounted to a restriction by object where having regard to the contractual clause, the legal and economic context and the properties of products in question, that clause was not objectively justified. In addition, the Block Exemption does not apply to a selective distribution contract which contains a clause prohibiting de facto the internet as a method of marketing the contractual products. However, the CJEU did note that the contract may benefit from an individual exemption pursuant to Article 101(3) TFEU, provided the four cumulative conditions laid down in that provision are met. The ruling was on interpretation of the law, and so it is for the referring court in France to make the actual Article 101(3) assessment.

b) Resale Price Maintenance

The articles outline issues around resale price maintenance, and in particular where the restrictions placed upon the distributors are considered to be a form of indirect resale price maintenance. The European Commission, in its Guidelines, provides some examples of the latter including "an agreement fixing the distribution margin, fixing the maximum level of discount the distributor can grant from a prescribed price level, making the grant of rebates or reimbursement of promotional costs by the supplier subject to the observance of a given price level, linking the prescribed resale price to the resale prices of competitors, threats, intimidation, warnings, penalties, delay or suspension of deliveries or contract terminations in relation to observance of a given price level" [39]. Although there was some discussion regarding the approach to resale price maintenance during the revision of the EU vertical rules, the European Commission continues to view the setting of minimum resale prices as a hardcore restriction of competition that makes block exemption inappropriate. However, the new vertical guidelines note that there under some circumstances resale price maintenance might satisfy the requirements for individual exemption in Article 101(3) TFEU [40].

The situation at national level seems to vary somewhat. The French Competition Council encountered a case where the supplier determined a floor price for its products and ensured compliance by threatening retaliatory measures if a discount price was applied. This was assisted by distributors who regularly informed the supplier about other defaulting distributors. It appears from the article as if the supplier was fined in this case [41]. In another French case, although the French Competition Council failed to prove that there was resale price maintenance, it did find that an exclusive purchase clause in the distribution agreement prohibited intra-network sales which led to national partitioning of supply sources, and prevented distributors from offering competitive prices to consumers [42]. The French Competition Council found an infringement of Article 101 TFEU and imposed a fine.

The Croatian Competition Authority annulled the provisions in a distribution agreement which imposed minimum rebates for further resale of products and services. However, it steered away from ruling on provisions that obliged distributors to monitor and report to the supplier the situation on the market and for any infringements by unauthorised distributors [43].

In the UK, the Director General of Fair Trading requested the removal of clauses in a distribution agreement obliging the distributor to contact the supplier before providing discounts (as well as the supplier having the option to buy back those goods in those circumstances) as well as being prohibited from referring to discounts or price reductions in advertising materials. These agreements deterred sales below the recommended prices, and were found to have the object of restricting competition [44].

This can be compared to the situation in Belgium where a non-authorised distributor, who had organised a promotion of the goods, was taken to court by the supplier and its exclusive distributor. One of the grounds of defence was that the selective distribution was illegal because, inter alia, distributors were required to seek approval for all publicity campaigns. This was not accepted by the appeal court which emphasised that the distribution agreement explicitly provided that the distributors were free to determine their resale price and that the unauthorised distributor had not provided evidence of retail price maintenance practices. However, the article does note that the court did not perform an in-depth analysis and limited its reasoning [45].

There are two cases that, although they involved resale price maintenance had no appreciable impact on competition. In one case, although the agreements contained a resale price maintenance clause (among other restrictions), the investigation of the Hungarian Competition Authority had not shown that this had an effect on competition. Given the small share that the supplier had on the Hungarian market and that it was unlikely that further investigation would yield further evidence, it decided to terminate its investigation [46]. The Dutch Competition Authority’s decision, finding that a distribution agreement which contained a minimum resale price from which the distributor could not deviate without prior consent of the supplier, had the object of restricting competition on the market was annulled by the Dutch court [47]. The Dutch court found that the competition authority should have examined the "economic and legal context in which the companies operated, the nature of the services and the structure of the relevant market as well as the actual context in which the agreement occurred" before reaching its conclusion.

5. Other Points

The articles also provide an indication of the various channels used to deal with issues on selective distribution. One example is that of Spira, a trader based in Antwerp, that filed complaints to the European Commission as well as to the Belgian Competition Authority, against De Beers’ Supplier of Choice distribution system. Spira is currently appealing the decisions of the European Commission rejecting its complaint to the General Court. Following rejection of that complaint, Spira obtained interim measures through the national courts compelling De Beers to continue to supply rough diamonds to Spira. Upon expiry of that relief, Spira then complained to the Belgian Competition Authority and also asked for interim measures, which were given to Spira [48]. This demonstrates that rejection by the European Commission does not always mean the end of a complainant’s case.

Notes

Note from the Editors: Although the e-Competitions editors are doing their best efforts to build a comprehensive set of the leading EU and national antitrust cases, the completeness of the database can not be guaranteed. The present foreword provides readers with a fair view of the existing trends based on cases reported in e-Competitions and alternative sources gathered by the author. Readers are welcome to bring to the attention of the editors any other relevant cases. Also, note that the foreword, in accordance with the authors, does not comment cases dealing with the motor vehicle block exemption

Footnotes

[1] Commission Notice: Guidelines on Vertical Restraints [2010] OJ C 130/1 para. 174.

[2] Commission Notice: Guidelines on Vertical Restraints [2010] OJ C 130/1 para.175.

[3] Commission Notice: Guidelines on Vertical Restraints [2010] OJ C 130/1 para. 178.

[4] Commission Regulation n° 2790/1999, of 22 December 1999, on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices (OJ L 336, 29 December 1999, p. 21-25).

[5] Commission Regulation n° 330/2010, of 20 April 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices (OJ L 102, 23.4.2010, p. 1–7).

[6] [2010] OJ C 83/49. For the purposes of this foreword we have referred to the TFEU articles throughout.

[7] Commission Notice: Guidelines on Vertical Restraints [2010] OJ C 130/1 para. 175. The Court of Justice has considered that selective distribution networks subject to conditions based upon quantitative requirements (such as requiring minimum or maximum sales) in principle fall within the prohibition in Article 101(1) TFEU (although they can benefit from the exemption under Article 101(3) TFEU). However, the European Commission in its recent guidelines notes that quantitative selective distribution is block exempted, even if combined with other non-hardcore restrictions, provided that the market thresholds are satisfied and there is no restriction on active selling to end users and to other authorised distributors. For a national example involving sales objectives (where the NCA found that this had limited impact and so the practice in that case was valid) ; see François Dumonteil, The French competition authority validates practices in the taximeter sector on the basis of both EC and French competition laws, 28 July 2005, e-Competitions, n° 259.

[8] ECJ, December 11th, 1980, L’Oréal, Case 31/80, [1980] ECR 3775, para. 16.

[9] ECJ, October 25th, 1977, Metro SB-Großmärkte v. Commission, Case 26/76, [1977] ECR 1875, para. 20.

[10] ECJ, July 3rd, 1985, Binon, Case 243/83, [1985] ECR 2015, para. 32.

[11] ECJ, October 25th, 1977, Metro SB-Großmärkte v. Commission, Case 26/76, [1977] ECR 1875.

[12] CFI, December 12th, 1996, GALEC v. Commission, Case T-88/92, [1996] ECR II-1961.

[13] ECJ, July 3rd, 1985, Binon, Case 243/83, [1985] ECR 2015.

[14] Commission Notice: Guidelines on Vertical Restraints [2010] OJ C 130/1 para. 175. Christophe Roquilly, A French Court rules that parallel resales do constitute an act of unfair competition (Puma / France Telecom, Brandalley, Vanam), 8 January 2008, e-Competitions, n° 19958.

[15] See Jérôme Philippe, Charlotte-Mai Doremus, The Paris Court of Appeal holds that a selective distribution system is compatible with EC Reg. n° 2790/1999 (LCJ Diffusion/La Roche Posay & Cosmétique Active France), 8 June 2005, e-Competitions, n° 136 and Jacques Derenne, Sami Andoura, A French Court makes good the damages suffered by an authorised dealer of a selective distribution network (LCJ Diffusion/La Roche Posay), 8 June 2005, e-Competitions, n° 240.

[16] See Vassiliki Koumpli, The Administrative Court of Appeal of Athens quashes a decision of the NCA ruling that a refusal to integrate into a cosmetics selective distribution network undertakings not providing for dispensing chemists constituted a disproportionate requirement on the basis of both EC and Greek competition laws (Lavicosmetica), 2005, e-Competitions, n° 489.

[17] See e.g, ECJ, October 25th, 1977, Metro SB-Großmärkte v. Commission, Case 26/76, [1977] ECR 1875.

[18] See Alexandr Svetlicinii, The Croatian Competition Authority annulls the price-fixing agreements concluded between a mobile phone operator and its distributors (VIPnet), 30 December 2008, e-Competitions, n° 26568.

[19] See Sarah Beeston, A Dutch Court of appeal rules that termination by supplier of distribution contract under pressure from competing distributors is concerted practice (Batavus - Vriend), 6 October 2009, e-Competitions, n° 32023.

[20] ECJ, December 11th, 1980, L’Oréal, Case 31/80, [1980] ECR 3775, para. 16.

[21] See Vassiliki Koumpli, The Administrative Court of Appeal of Athens quashes a decision of the NCA ruling that a refusal to integrate into a cosmetics selective distribution network undertakings not providing for dispensing chemists constituted a disproportionate requirement on the basis of both EC and Greek competition laws (Lavicosmetica), 2005, e-Competitions, n° 489.

[22] See Romain Maulin, Sergio Sorinas, The French NCA fines nearly 80 companies and trade associations for horizontal and vertical agreements in the sector of heating, sanitation, plumbing and air-conditioning products and clarifies the standard of proof applicable to anticompetitive meetings (Agreement in the sector of heating, sanitary, plumbing and air-conditioning products), 9 March 2006, e-Competitions, n° 27308.

[23] Exclusive supply is where a supplier sells products only or mainly to one buyer, in general or for a particular use (see Commission Notice: Guidelines on Vertical Restraints [2010] OJ C 130/1 para. 192).

[24] See Tristan Baumé, Marsela Maci, A Dutch Court refuses to accord to a selective distribution system the benefit of the EC vertical restraint block exemption Regulation (Batavus), 2 March 2005, e-Competitions, n° 197.

[25] See Tristan Baumé, Katelijne Lafleur, A Dutch Court hearing an application for interim relief declares a selective distribution agreement contrary to Art. 81.1 EC and void (Polar/Walstock), 4 April 2005, e-Competitions, n° 20.

[26] See Romain Ferla, A French Court of appeal rejects a request to forbid Internet resellers to sell a supplier’s products considering that the legality of its exclusive distribution network is not established (Brandalley, Over Stock / Puma), 24 June 2008, e-Competitions, n° 22339.

[27] See Jérôme Philippe, Charlotte-Mai Doremus, The Paris Court of Appeal holds that a selective distribution system is compatible with EC Reg. n° 2790/1999 (LCJ Diffusion/La Roche Posay & Cosmétique Active France), 8 June 2005, e-Competitions, n° 136.

[28] See Filippo Amato, Stefano Macchi di Cellere, Johannes Zöttl, The European Commission adopts new rules on vertical restraints, 20 April 2010, e-Competitions, n° 33680.

[29] See Sarah Beeston, A Dutch Court of appeal rules that termination by supplier of distribution contract under pressure from competing distributors is concerted practice (Batavus - Vriend), 6 October 2009, e-Competitions, n° 32023.

[30] Article 4(c).

[31] Article 4(d).

[32] See Aldona Kwapisz, The Polish Court of Appeals quashes the NCA’s decision and considers that an agreement limiting distribution of a drug to selected distributors does not restrict competition (Johnson & Johnson’s), 25 July 2006, e-Competitions, n° 13246.

[33] See Andreas Stephan, The Hellenic Competition Commission fines coffee maker nearly € 30 M for infringements of Art. 81 and 82 EC and their domestic equivalents (Nestle Hellas), 25 July 2006, e-Competitions, n° 26131.

[34] Commission Notice: Guidelines on Vertical Restraints [2010] OJ C 130/1 para. 52.

[35] See Ombline Ancelin, Charles Saumon, The French Competition Council agrees to commitments from Hi-Fi and Home Cinema equipment suppliers in order to allow their selective distributors to carry out online selling (Hi-Fi/Home Cinema), 5 October 2006, e-Competitions, n° 12641 ; Laura Cerny, François Doridou, The French Competition Council accepts commitments to modify selective distribution agreements as regards access to the network and advertising on the Internet (Festina), 24 July 2006, e-Competitions, n° 12128 ; Romain Ferla, A French Court of appeal rejects a request to forbid Internet resellers to sell a supplier’s products considering that the legality of its exclusive distribution network is not established (Brandalley, Over Stock / Puma), 24 June 2008, e-Competitions, n° 22339; Sarah Beeston, A Dutch Court of appeal rules that termination by supplier of distribution contract under pressure from competing distributors is concerted practice (Batavus - Vriend), 6 October 2009, e-Competitions, n° 32023; Frédéric Manin, A French Court condemns a leading auction website to pay damages to perfume makers for a violation of its selective distribution networks and rejects the defendant’s arguments based on Art. 81 EC (Parfums Christian Dior, Kenzo Parfums, Parfums Givenchy and Guerlain v. eBay), 30 June 2008, e-Competitions, n° 20065 ; Joseph Vogel, A French Court finds eBay liable for the infringement of selective distribution networks and unlawful acts committed against perfumers on its sites (Parfums Christian Dior, Kenzo Parfum, Parfums Givenchy, Guerlain v. eBay), 30 June 2008, e-Competitions, n° 20125 and Christophe Roquilly, A French Civil Court considers that the leading online auctions website must benefit from the "host" legal statute created by the French Law for trust in numerical economy (L’Oréal/eBay), 13 May 2009, e-Competitions, n° 28285.

[36] See Juliette Goyer, The French NCA sanctions the prohibition of Internet sales imposed on the members of a selective distribution network, under Art. 81.1 EC (Pierre Fabre Dermo-cosmétique), e-Competitions, n° 22891.

[37] See Lila Ferchiche, A French Court of Appeal makes a reference for a preliminary ruling to the ECJ on whether a general and absolute ban on Internet sales by approved distributors does constitute a "hardcore restriction" on competition by object within the meaning of Art. 81.1 EC (Pierre Fabre Dermo-Cosmétique), 29 October 2009, e-Competitions, n° 29700.

[38] Case C-439/09, Pierre Fabre Dermo-Cosmétique SAS v Président de l’Autorité de la concurrence and Ministre de l’Économie, de l’Industrie et de l’Emploi, nyr (See Joseph Vogel, The European Court of Justice rules that absolute bans on Internet sales are prohibited (Pierre Fabre Dermo-Cosmetique), 13 October 2011, e-Competitions, n° 39725).

[39] Commission Notice: Guidelines on Vertical Restraints [2010] OJ C 130/1 para. 48.

[40] Paras. 223-228.

[41] See Joffrey Sigrist, The French Competition Council holds systematic discount prohibition in a selective distribution network as prohibited indirect resale price maintenance (Bausch & Lomb / Casino), 5 February 2002, e-Competitions, n° 33352.

[42] See Ombline Ancelin, Charles Saumon, The French Competition Council holds anticompetitive an exclusive purchase clause in a selective distribution agreement (NGK Spark Plugs), 21 July 2006, e-Competitions, n° 12414 and Juliette Goyer, Lauriane Lépine, The French Competition Council fines an exclusivity purchase clause contained in a selective distribution agreement on the basis of both Art. 81.1 EC and French provisions (NGK Spark Plugs), 21 July 2006, e-Competitions, n° 12430.

[43] See Alexandr Svetlicinii, The Croatian Competition Authority annulls the price-fixing agreements concluded between a mobile phone operator and its distributors (VIPnet), 30 December 2008, e-Competitions, n° 26568.

[44] See Bruce Kilpatrick, The UK Director General of Fair Trading finds that a Spanish porcelain manufacturer has entered into selective distribution agreements with national retailers with the aim of preventing those retailers from selling its figurines at discount prices (Lladró Comercial), 31 March 2003, e-Competitions, n° 32230.

[45] See Louise Depuydt, A Belgian Court of Appeal rules that the obligation to obtain the supplier’s approval of advertisement campaigns in a selective distribution relationship does not constitute an indirect resale price maintenance clause (Chanel a.o./ Makro), 6 September 2004, e-Competitions, n° 32226.

[46] See Attila Kõmíves, Daniel Szentkuti, The Hungarian Competition Office holds, in relation to the distribution of energy drinks, that selective resale price fixing is not a hardcore restriction (Büki Ásványvíz- és Üditõital Kereskedelmi), 14 May 2008, e-Competitions, n° 21536.

[47] See Tristan Baumé, Katelijne Lafleur, A Dutch Court decides that the decision of the competition authority should have been annulled since the latter did not examine whether a restrictive distribution agreement had an appreciable effect on competition (Secon & G-Star), 7 December 2005, e-Competitions, n° 431.

[48] See Article from European Competition Network Brief, The Belgian Competition Authority imposes interim measures on leading producer of rough diamonds (De Beers), 25 November 2010, e-Competitions, n° 35709.

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