Ban of sales through marketplaces: further clarifications would be welcome
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It is well known that a total ban of online sales constitutes a hardcore restriction of passive sales and is qualified as a restriction of competition by object. This was clearly stated by the EU Commission in its 2010 guidelines[1] and confirmed by the European Court of Justice (ECJ) in the Pierre Fabre case.[2]
The position on the prohibition of the use of marketplaces however was less clear. Indeed, in 2014-2015, the German[3] and French[4] competition authorities considered that such prohibition imposed by suppliers on distributors raised competition concerns. These two authorities had opened a case against Adidas, which made a commitment to removing this type of restriction from its distribution contracts in exchange for the closure of the cases.
This was in contrast with the position of the EU Commission, which considered that such a ban was not problematic, as stated in its 2010 guidelines on vertical restraints[5] and in its final report on e-commerce in May 2017[6]. The divergence of views was finally resolved by the ECJ in its Coty decision of 6 December 2017[7] which held that the ban on use of marketplaces does not raise issues if the market shares of the parties do not exceed 30 % and could even possibly be justified above this threshold.
Below a 30 % market share threshold, the ECJ clarified that marketplace restrictions are bloc-exempted since they do not constitute hardcore restrictions as they are neither:
- a restriction of the customers to whom the distributor can sell, as online users visiting marketplaces do not constitute a particular category of online buyers;
- a restriction of passive sales to buyers, as they can always buy directly from the distributor on its own website.
Above the 30% market share threshold, the assessment is however more uncertain. In particular it remains unclear whether marketplaces restrictions are lawful outside selective distribution systems and for goods other than luxury goods.
In the context of the consultation launched by the EU Commission on the evaluation of the Vertical Block Exemption Regulation (VBER), the EU Commission found that national competition authorities and stakeholders have called for better guidance on the assessment of marketplace restrictions. It will be interesting to see how far the EU Commission will clarify its position in the revised version of the VBER and its accompanying guidelines, beyond the findings of the Coty case.
For more information contact Thomas Oster or Eliott Costet.
[1] EU Commission, Guidelines on vertical restraints, 2010/C 130/01, 19 May 2010, para. 52.
[2] ECJ, 13 October 2011, case C-439/09, Pierre Fabre Dermo-Cosmétique SAS, para. 47 in which the ECJ held that the prohibition of sale on the Internet constitutes a restriction by object unless there is an objective justification based on the properties of the product.
[3] Bundeskartellamt, 27 June 2014, decision no. B3-137/12, Adidas gibt pauschale Verkaufsverbote über C Marktplätze auf.
[4] French Competition Authority, press release of 3 December 2015, “L’Autorité de la concurrence clôt une enquête à l’encontre d’Adidas”.
[5] EU Commission, Guidelines on vertical restraints, 2010/C 130/01, 19 May 2010, para. 54
[6] EU Commission, Antitrust: Final report on e-commerce sector inquiry, para. 42
[7] ECJ, 6 December 2017, case C-230/16, Coty Germany GmbH vs Parfümerie Akzente GmbH.
