Online sales restrictions under scrutiny of European Antitrust Authorities

by DLA Piper


Antitrust authorities in Europe are getting more and more rigid with regard to clauses that restrict or ban online sales, especially sales over internet platforms such as Amazon and ebay. In principle, the EU Commission in its Vertical Guidelines requires that every distributor must be allowed to use the internet to sell products. However, regarding third party internet platforms, the EU Commission accepts in margin number 54 Vertical Guidelines that a supplier may ban sales over those platforms by requiring that customers do not visit the distributor's website through a site carrying the name or logo of the third party platform. Competition authorities, specifically the German FCO, appear not to follow this approach in all cases and require "objective reasons" for banning online platforms.

Restrictions of online sales may be illegal

The prohibition on anti-competitive agreements (Art. 101 (1) Treaty of the European Union, "TFEU") also covers agreements that limit or ban online sales. Such anti-competitive agreements may be exempted from the prohibition and thus be lawfully implemented, if the Vertical Block Exemption Regulation ("VBER") is applicable, ie specifically no hard-core restrictions are involved.

Limiting or prohibiting online sales, may, in the view of competition authorities, constitute a hard-core restriction under the VBER and thus an anti-competitive agreement that is highly likely not exempted and thus illegal.

Despite margin number 54 Vertical Guidelines, this could in principle also be the case for a ban of sales over internet platforms, especially where there are no objective reasons for the ban.

Sennheiser and Pierre Fabre: two recent examples of antitrust investigations

In a recent case in Germany, headphone-maker Sennheiser had to change the terms of its online-distribution contracts that prevented the authorized dealers of Sennheiser's selective distribution system from selling products over the internet platform Amazon Marketplace, following an investigation of the German Federal Cartel Office (FCO). Since Sennheiser had authorized Amazon as one of its appointed dealers, the sale of other appointed dealers over Amazon's platforms could not be prohibited. The FCO was of the opinion that efficiency enhancing effects ("objective reasons") of the internet platform ban were not apparent, since Amazon's electronic distribution fulfilled the qualitative criteria of Sennheiser's selective distribution system. Furthermore, the FCO generally put into question, whether authorized dealers in a selective distribution system may be third parties in the meaning of margin number 54 Vertical Guidelines. According to statements by members of the FCO, this may form a general approach, even in less "clear" cases. The FCO also reviews platform bans imposed by Adidas and Reebock.

In France, cosmetics producer Pierre Fabre made a similar experience, when it de facto refused to authorize its brick and mortar selective distribution retailer network to sell the brand's cosmetics on the internet by requiring a pharmacist be present at any sale to a consumer. The European Court of Justice (ECJ) stressed in that case that the aim to maintain a luxurious brand image, was not a legitimate aim for restricting competition through a de facto ban of internet sales. The ECJ further emphasized that a de facto ban of the internet as a method of marketing could not be exempted by the VBER. On the basis of the ECJ judgement, the Paris Court of Appeals ruled that the total prohibition of online sales was unlawful and imposed on Pierre Fabre to modify its selective distribution agreements.


Based on the above, selective distribution appears to face challenges. Margin number 54 Vertical Guidelines is no longer a "safe harbour".



DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© DLA Piper | Attorney Advertising

Written by:

DLA Piper

DLA Piper on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.