This means that the members of a selective distribution system cannot be limited among the customers to whom they sell. The Guidelines (in recital (52)) address this issue in the context of electronic commerce and stipulate that any obligation for a trader to prevent customers from another territory from visiting its website and purchasing its products is considered to be a hardcore restriction. Case law has also held that a ban on selling via the Internet is not synonymous with a ban on “operating from an unauthorised place of establishment”.7 VABER automatically exempts vertical agreements from the general prohibition in Article 101: See also, Analysis of vertical agreements under competition law, Vertical restraint block exemption. For a checklist of the most important steps in assessing vertical agreements, see Vertical agreement checklist. From the point of view of competition law, the assessment of exclusive distribution is ambivalent: increased competition from brands comes at the expense of reducing intra-brand competition. Exclusive distribution restricts competition and at the same time contributes to its development. It is therefore likely to escape the prohibition of the Restrictive Agreements Act. While trade negotiations on the definition of agreements for 2021 are already underway, the CEPC has published on its website a recommendation aimed at “helping the professionals concerned in the possible difficulties of applying the current contracts due to the health crisis and their (…) With this new trending issue in the context of the latest developments in the French distribution law, the Revue des Concurrences continues its work on the main competition issues raised by the Macron law adopted on 6 August 2015. From small adjustments to transparency law to real developments (…) This quick start guide takes into account selective distribution in the EU.
The impact of the ACC on selective distribution agreements between the EU and the UK is not taken into account. Companies should seek legal advice on selective distribution agreements between the EU and the UK. Under an exclusive distribution agreement, the distributor has an exclusive distribution territory in which it is protected against competing sales of the supplier and/or designated distributors in other territories. Somewhat less frequently and alone or in combination with an exclusive distribution territory, the distributor can benefit from the allocation of an exclusive category of customers, again with protection against competing sales of the supplier/other distributors. On 9 July 2021, the European Commission (EC) published a draft revised Vertical Block Exemption Regulation (DDPER) and a draft revised vertical guidelines for public consultation. The European Commission has made significant changes, including adjustments to the rules on dual distribution, dual pricing and parity obligations. Internet sales have been the subject of much discussion regarding distribution agreements, as they threaten the concept of exclusive territories and allow the possibility of “parasitism”. In addition, especially in the context of luxury goods, suppliers fear that the prestige of the brand will be lost if it is not accompanied by personalized customer service and care in an appropriate environment, which contributes to the aura of luxury, prestige and exclusivity. The guidelines were intended to update the definitions of active and passive sales in light of the growth of e-commerce. It indicates that the use of the Internet is generally considered a passive sale. Specifically, the guidelines state that the use of a website is considered a passive sale as long as it is not aimed at specific customers, for example through the use of online banner ads and unsolicited emails to customers. These practices are considered active sales.13 This distinction is less relevant in the context of selective distribution systems, as active and passive sales to final customers (and other authorised distributors) must be allowed.
The advantage of VABER is generally not available for distribution agreements concluded by actual or potential competitors. A potential competitor in this case is a party that could and would enter the market quickly (within approximately 12 months) in response to a small but sustained price increase. There is an important limitation to the exclusion of competing parties under the block exemption. The block exemption applies when competitors conclude a non-reciprocal distribution agreement (i.e. only one party distributes for the other party) and: for several years, the European institutions and competition authorities have focused on the digital sector (see The Digital Agenda for Europe, launched in May 2010). The international conference at the University of Paris Nanterre took place on November 17, 2016 with the (…) This quick guide provides an overview of how selective distribution agreements are treated under EU competition law. It is true that in recent years the European Commission has granted relatively little application with regard to selective distribution or other vertical agreements, and activity has tended to focus on horizontal cartels between competitors. Recently, however, there have been cases related to territorial restrictions, online customers and pricing.
In general, the parties must carry out their own analysis to determine whether their agreements fall under Article 101(3), but the European Commission has also adopted “block exemption regulations” with regard to certain common types of trade agreements, which set out clear rules on the conditions to be fulfilled and the conditions that can be included in an agreement for Article 101, paragraph 3 shall apply. The distribution block exemption (the vertical block exemption (VABER)) is one of the most important block exemption regulations under EU competition law in terms of the number of agreements to which it applies (distribution agreements and other supply agreements are common). Any refusal to admit operators who meet the qualitative criteria could be considered an unlawful restriction of competition. This section selects books on topics related to competition law and economics. This compilation does not seek to be exhaustive, but rather an overview of important topics in this field. The survey usually includes publication within the last three months of the publication of the last issue of (…) The revised draft Block Exemption Regulation offers better protection for selective distribution systems. The second indent of Article 4(c)(i) allows a supplier to restrict the members of the selective distribution system – as well as the customers of those distributors – of all sales (active or passive) to unauthorised distributors in any territory in which the supplier operates a selective distribution system (which means that the supplier designates selected distributors or reserves the territory for the application of such a distribution system). selective). (a). Article 4(b)(ii) allows for the restriction of all sales (active or passive) by exclusive distributors – as well as by customers of those distributors – to unauthorised resellers in a territory where the supplier operates a selective distribution system. The Commission has identified a potential gap as the current Block Exemption Regulation does not cover dual distribution by wholesalers and importers, who often play a similar role to suppliers.
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