European Competition Law provides a wide-ranging review of the European rules relating to competition: restrictive agreements, abuse of a dominant position, impact of intellectual property rights, procedure, merger control, State aid.

European Competition Law

Parallel imports may be problematic in an exclusive distribution network. The conditions of sale are not necessarily the same in all the twenty-eight markets of the European Union and the members of a national network can face competition from imports coming from other Member States. The objective of EU competition law, however, is not only to ensure the free play of competition but also to promot …

Prohibition of parallel imports

Parallel imports may be problematic in an exclusive distribution network. The conditions of sale are not necessarily the same in all the twenty-eight markets of the European Union and the members of a national network can face competition from imports coming from other Member States. The objective of EU competition law, however, is not only to ensure the free play of competition but also to promote the creation of a large European market by facilitating the export of network products and services, as well as their importation at the margins of exclusive distribution networks.

Under Article 4 of Regulation No 330/2010, prohibiting parallel imports, which institutes an absolute territorial protection, is a hardcore restriction, i.e. a black clause that will not qualify for the benefit of the exemption . The EU Court has held exclusivity agreements to be anticompetitive when they have the effect of partitioning the market, especially when combined with a national legislation which considers a third party engaging in parallel imports  to be an act of unfair competition. Similarly, the clause by which the supplier grants its manufacturer's guarantee only for products acquired by customers of its exclusive dealers, thereby excluding products marketed through parallel import channels, is restrictive of competition . The supervisory authorities adopt an “end-result” approach, focusing on the effect of the contractual clause rather than on its objet , which allows them to also address indirect restrictions. Consequently, an exclusive distribution agreement which did not prohibit re-exports was deemed to be an anticompetitive agreement where the contracting parties were engaged in a concerted practice aimed at restricting parallel imports intended for an unauthorized dealer .

Conversely, a clause which does not have the effect of discouraging exports cannot be prohibited. This was the case for a clause by which the exclusive distributor undertook, in the event of a sale outside the allocated territory, to pay to the distributor responsible for that territory a service support fee the amount of which was to be agreed between the two distributors, and in default of agreement the manufacturer was to determine the amount, having regard to objective criteria corresponding to a realistic assessment of the cost of the service .

 Commission Decision No 2003/675 of 30 October 2002, PO Video Games / PO Nintendo Distribution/ Omega-Nintendo, LawLex200500004659JBJ, restriction of passive sales creating an absolute territorial protection; Case T-43/92 Dunlop Slazenger v Commission [1994] ECR II-441, LawLex200500004964JBJ, on exports to exclusive territories and cross-supplies.

Case 22/71 Béguelin Import v G.L. Import Export [1971] ECR 949, LawLex200400002766JBJ.

Case 31/85 ETA v DK Investment [1985] ECR 3933, LawLex200500003989JBJ. There is only an infringement insofar as the restriction on competition, which is likely to result therefrom affects trade between Member States. Since all resellers enjoy full cover of the manufacturer's normal guarantee, nothing prevents the latter from granting special benefits to its exclusive distributors, such as a repair service within 24 hours or a two-year guarantee extension: Case 86/82 Hasselblad v Commission [1984] ECR 883, LawLex200500005391JBJ. 

See Case T-43/92 Dunlop Slazenger v Commission [1994] ECR II-441, LawLex200500004964JBJ, relative to a refusal to supply, buying back of products which had been exported through parallel channels, policy of charging higher prices for exported goods, marking products in order to identify the source of parallel imports, or the discriminatory use of official labels, giving exclusive distributors an absolute territorial protection and allowing them to pursue different pricing policies.

Case T-49/95 Van Megen Sports Group v Commission [1996] ECR II-1799, LawLex200500005140JBJ; Case T-62/98 Volkswagen v Commission [2000] ECR II-2707, LawLex200400003580JBJ: policy of imposing supply quotas on dealers combined with a bonus system intended to induce them to sell at least 85% of available vehicles within their contract territory.

Case T-67/01 JCB Service v Commission [2004] ECR II-49, LawLex200500004797JBJ.

European Competition Law

114. Prohibition of parallel imports

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

114. Prohibition of parallel imports

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise