03/08/2017 - THE EUROPEAN COMMISSION HAS PUBLISHED THE FINAL FINDINGS OF ITS INQUIRY ON E-COMMERCE AND COMPETITION LAW

On May 6, 2015 the European Commission launched an inquiry on the e-commerce sector with the aim of identifying business practices that may restrict competition. The Commission definitive findings have been published in a final report last May 10, 2017.

The report analyses selective distribution systems and restrictions in relation to the use of marketplace platforms. In selective distribution systems, manufacturers set the criteria that retailers must meet to become part of the distribution network and prohibit sales to unauthorized retailers. The use of selective distribution allows manufacturer to better control their distribution networks, in particular in terms of the quality of distribution.

The report gives evidence that, in the context of selective distribution systems, there has been an increase in the use of contractual restrictions limiting the ability of retailers to sell via online marketplaces (‘marketplace restrictions’ or ‘platform bans’). The findings of the Commission’s inquiry indicate that (absolute) marketplace bans should not be considered, per se, as hardcore restrictions within the meaning of Regulation (EU) n. 330/2010. Nonetheless, the Commission or a national competition authority may decide to sanction these restrictions, in particular cases when justified by the market situation.

Currently, a case is pending before the European Court of Justice (Case C-230/16 Coty Germany GmbH v Parfümerie Akzente GmbH) concerning the application of marketplace bans in selective distribution agreements. The decision of the Court is expected to shed some light on the issue.

 

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avv. Sondra Faccio