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

When the system in question is not within the scope of the rule of reason and exceeds the 30% threshold set down in the block exemption regulation, it may be able to benefit from an individual exemption. A number of restrictive clauses that may be exempted have been identified by the case law. The Guidelines also contain directions for the assessment of the competitive situation above the 30% mark …

Individual exemptions

When the system in question is not within the scope of the rule of reason and exceeds the 30% threshold set down in the block exemption regulation, it may be able to benefit from an individual exemption. A number of restrictive clauses that may be exempted have been identified by the case law. The Guidelines also contain directions for the assessment of the competitive situation above the 30% market share threshold .

The lawfulness of contracts forming a system of selective distribution has been recognized by the Commission, because they lead to the creation of “an uninterrupted and improved supply […] to customers” and that the restrictions “ensure that […] products are distributed only to dealers who meet certain professional standards and make a special effort to promote the sales of this particular manufacturer” .

The obligation to keep a minimum stock , to make a minimum amount of purchases from the supplier , to achieve a minimum turnover , clauses relating to the range which obligate the authorized distributor to stock as comprehensive an assortment of the supplier's products as possible , clauses pertaining to competing brands imposing the presence of other luxury brands in order to reflect the image and reputation of the products , obligations relating to cooperation in advertising and promotional activities enabling the planning of coordinated advertising campaigns  or the prohibition on active sales of new products  have all been exempted as they contributed to the improvement of production and distribution.

The obligation under which authorized distributors must comply with the network head's price policy has, however, been held to be restrictive of competition . Membership to the network cannot be subject to the obligation to give an undertaking to charge prices making possible a sufficiently high profit margin . A restriction of price competition is inherent in any system of selective distribution; thus, the obligation for authorized resellers to maintain certain price levels can be lawful or at least fulfill the conditions for exemption of Article 101(3) TFEU, where it corresponds to the desire to preserve, in the consumer's interests, the possibility of the continued existence of this channel of distribution in conjunction with new methods of distribution based on a different type of competition policy  or to support the financial burden resulting from the taking back of unsold products . Furthermore, cross-supply bans are prohibited within selective distribution systems . This is also true for bans on active or passive sales .

Selective distribution mainly runs the risk of weakening intra-brand competition. Such a weakening has no impact on competition where there are no restrictions on inter-brand competition . The market position of the supplier and his competitors is crucial in assessing any harmful effects on competition. The supplier's strong position will be offset by the presence of numerous competitors . The number of selective distribution networks present on the same market is also of utmost significance. If there is only one supplier operating selectively, the agreement cannot produce negative effects. On the other hand, the existence of several selective distribution systems can lead to a weakening of intra-brand competition, the possible elimination of certain types of distributor and the risk of collusion between suppliers . The cumulative effect of parallel selective distribution networks will prevent exemption . On the other hand, distributors are not likely to be eliminated if their competitors do not apply selective distribution and are in a strong position on the market. Quantitative selective distribution can also create barriers to entry. Selective distribution is used by makers of branded goods and requires heavy investments in terms of time and money to become established on the market . Excluded retailers will therefore have little chance of launching their own brands or obtaining competitive supplies elsewhere. The purchasing power of authorized dealers may also lead to the elimination of particular distributors by allowing network members to impose selection criteria on the supplier aimed at limiting distribution to their advantage .

See Commission Notice No 2010/C 130/01 pts 110, 122 et seq. 

Commission Decision No 83/672/EEC of 21 December 1983, SABA's EEC distribution system, LawLex200500004100JBJ; No 84/233/EEC of 18 April 1984, IBM personal computer, LawLex200500005320JBJ; No 92/33/EEC of 16 December 1991, Yves Saint Laurent Parfums, LawLex200500005352JBJ; Case 75/84 Metro v Commission [1986] ECR 3021, LawLex200500004031JBJ; Case T-19/92 Leclerc v Commission [1996] ECR II-1851, LawLex200500003930JBJ and Case T-88/92 Leclerc v Commission [1996] ECR II-1961, LawLex200500003933JBJ.

Case 107/82 AEG v Commission [1983] ECR 3151, LawLex200500004025JBJ margin.

Case 26/76 Metro v Commission [1977] ECR 1875, LawLex200400002980JBJ.

Case 243/83 Binon v AMP [1985] ECR 2015, LawLex200500004001JBJ.

Commission Decision No 90/38/EEC of 13 December 1989, Bayo-n-ox, LawLex200500005346JBJ.

A prohibition on active sales of new products for a fixed period constitutes a restriction of competition which cannot be justified under Article 101(3) TFEU : Commission Decision No 92/428/EEC of 24 July 1992, Parfums Givenchy system of selective distribution, LawLex200500004686JBJ.

Commission Notice No 2010/C 130/01, Guidelines on Vertical Restraints, at pts 102 and 177.

Commission Notice No 2010/C 130/01, Guidelines on Vertical Restraints, at pt 178.

A cumulative effect problem is unlikely to arise when the share of the market covered by selective distribution is below 50% or where the market coverage ratio exceeds 50% but the aggregate market share of the five largest suppliers is below 50%. Where both the share of the five biggest suppliers and the market covered by selective distribution exceed 50%, the assessment may vary depending on whether all five of the largest suppliers apply selective distribution. If they apply selective distribution, competition concerns may arise in particular in respect of those agreements that apply quantitative selection criteria. Individual exemptions will not be available if the selective distribution systems at issue prevent access to the market by new distributors capable of adequately selling the products in question. More indirect forms of quantitative selective distribution, with the requirement imposed on the dealers to achieve a minimum amount of annual purchases, remain possible if such an amount does not represent a significant proportion of the dealer's total turnover achieved with the type of products in question. However, this must not go beyond what is necessary for the supplier to recoup his relationship-specific investment and/or realize economies of scale in distribution; See also Commission Notice No 2010/C 130/01, Guidelines on Vertical Restraints, at pt 179.

Communication Notice No 2010/C 130/01, Guidelines on Vertical Restraints, at pt 179.

Commission Decision No 83/672/EEC of 21 December 1983, SABA's EEC distribution system, LawLex200500004100JBJ; No 76/159/EEC of 15 December 1975, SABA, LawLex200400002389JBJ; No 85/559/EEC of 27 November 1985, Ivoclar, LawLex200400002433JBJ; No 92/33/EEC of 16 December 1991, Yves Saint Laurent Parfums, LawLex200500005352JBJ; No 92/428/EEC of 24 July 1992, Parfums Givenchy system of selective distribution, LawLex200500004686JBJ; No 94/29/EEC of 21 December 1993, Grundig's EC distribution system, LawLex200400002496JBJ; Case 26/76 Metro v Commission [1977] ECR 1875, LawLex200400002980JBJ.

Communication Notice No 2010/C 130/01, Guidelines on Vertical Restraints, at pt 181.

Commission Decision No 92/33/EEC of 16 December 1991, Yves Saint Laurent Parfums, LawLex200500005352JBJ; No 92/428/EEC of 24 July 1992, Parfums Givenchy system of selective distribution, LawLex200500004686JBJ.

Commission Decision No 83/672/EEC of 21 December 1983, SABA's EEC distribution system, LawLex200500004100JBJ; No 76/159/EEC of 15 December 1975, SABA, LawLex200400002389JBJ; Case 26/76, Metro v Commission [1977] ECR 1875, LawLex200400002980JBJ.

Commission Decision No 83/672/EEC of 21 December 1983, SABA's EEC distribution system, LawLex200500004100JBJ; No 94/29/EEC of 21 December 1993, Grundig's EC distribution system, LawLex200400002496JBJ.

Commission Decision No 85/616/EEC of 16 December 1985, Villeroy & Boch, LawLex200400002436JBJ; No 92/33/EEC of 16 December 1991, Yves Saint Laurent Parfums, LawLex200500005352JBJ; No 92/428/EEC of 24 July 1992, Parfums Givenchy system of selective distribution, LawLex200500004686JBJ.

Commission Decision No 82/267/EEC of 6 January 1982, AEG-Telefunken, LawLex200500004107JBJ, resellers forced to implement the pricing policy of the supplier under penalty of a supply ban, the payment of compensation, or even exclusion from the network.

European Competition Law

122. Individual exemptions

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

122. Individual exemptions

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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