Bans on internet sales. Little room for manoeuvre in selective distribution agreements
Met dank aan Sil Kingma, Boekel De Nerée.
On 13 October 2011, the European Court of Justice (ECJ, RB 1152, C-439/09.) ruled that a clause in a selective distribution contract that effectively bans the distributors of a company from selling its products online constitutes an infringement of competition law, unless that clause is objectively justified or eligible for an individual exemption. The ECJ stated that such a clause cannot benefit from the block exemption for vertical agreements.
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In regard to the block exemption, the ECJ stated that the block exemption is not applicable to clauses which ban internet sales. Even though the practice of prohibiting internet selling is not expressly referred to as a restriction that removes the benefit of the block exemption, the nature of the practice is equivalent to a ban on active and passive sales, which is considered as such.
The ECJ did not examine whether PFDC’s distribution system could be eligible for an individual exemption. It is for the Paris Court of Appeals to examine whether the conditions thereto are met.
Conclusion
Contractual clauses in selective distribution contracts, resulting in a ban on internet sales, are prohibited, unless such a ban is objectively justified or eligible for an individual exemption. The block exemption does not apply to agreements containing such clauses, since this results in a restriction of active and passive sales to end users.
