1 / 14

Internet Sales How to Regulate Your Distribution Network

Internet Sales How to Regulate Your Distribution Network. Edward Miller emiller@reedsmith.com +44 20 3116 3470. Pierre Fabre ECJ Decision C-439/09 - 3.10.11. Key Legal Sources. Vertical Restraints Block Exemption 330/2010/EU. European Commission Guidelines 2010/C 130/01.

Download Presentation

Internet Sales How to Regulate Your Distribution Network

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript


  1. Internet SalesHow to Regulate Your Distribution Network Edward Miller emiller@reedsmith.com +44 20 3116 3470

  2. Pierre Fabre ECJ Decision C-439/09 - 3.10.11 Key Legal Sources Vertical Restraints Block Exemption 330/2010/EU European Commission Guidelines 2010/C 130/01 Internet Distribution Strategy

  3. Regulating the Distributor’s Use of the Internet Required bricks & mortar sales Restricting “active” and “passive” sales Required quality standards Non Uniform Pricing? Use of maximum order requirements Use of Supplier’s IP

  4. “Active” and “Passive” Sales • May restrict active sales made into the territory of another exclusively distributor or reserved exclusively to the supplier (VRBE, art 4(b)(i)) • “In principle, every distributor must be allowed to use the internet to sell products. In general, where a distributor uses a website to sell products that is considered a form of passive selling …” (Guidelines, para 52)

  5. Bricks and Mortar • “… supplier [may] requir[e], without limiting the online sales of the distributor, that the buyer sells at least a certain absolute amount (in value or volume) of the products offline to ensure an efficient operation of its brick and mortar shop …” (Guidelines, para 52(c)) • But – cannot restrict proportion of on-line sales • Not only selective distribution

  6. Quality standards • “… the supplier may require quality standards for the use of the internet site to resell its goods, just as the supplier may require quality standards for a shop or for selling by catalogue or for advertising and promotion in general.” (Guidelines, para 54) • Can restrict use of “third party platforms” • Seemingly not only selective distribution

  7. Maximum Order Requirements • “… in order to prevent sales to unauthorised dealers, a supplier can restrict its selected dealers from selling more than a given quantity of contract products to an individual end user. Such a requirement may have to be stricter for online sales if it is easier for an unauthorised dealer to obtain those products by using the internet.” (Guidelines, para 56)” • Selective distribution only

  8. Non-uniform Pricing • Supplier may agree a fixed fee to support offline sales (Guidelines, para 52(d)) • Variable fee considered to amount “indirectly to dual pricing”

  9. Supplier’s IP • Obligation to licence images etc for on-line sales?? • Imposition of a royalty – variable or fixed??

  10. Outside the VRBE – Pierre Fabre • European Court of Justice does leave open the possibility that an individual exemption under Article 101(3) might be available for an absolute ban on internet sales in a selective distribution agreement. • Court gives no indication of the circumstances in which such an exemption might be available. • Such an exemption is not given under Article 4(c) of the Vertical Restraints Block Exemption (exemption for ban on selling contract products in a selective distribution agreement from an unauthorised location) • Maintenance of a prestigious brand image cannot constitute a legitimate reason for restricting competition. • Need to provide advice to the consumer has not been accepted as justification for a ban on Internet sales in the context of non-prescription drugs and contact lenses.

  11. Important to maintain integrity of selective distribution networks Leclerc (YSL) T-19/92 Non-dominant suppliers can refuse to supply – but take care! Bayer (C-2/01P C-3/01P 6.1.04) Consequences Difficult to maintain pricing differentials

More Related