French Supreme Court, Commercial Chamber, 24 September 2013, Case no. 12- 14.344
The French Supreme Court has upheld a Court of Appeals’ decision finding that a clause was disproportionate and thus anticompetitive because it required the selected distributors to prove the physical presence of a qualified pharmacist in order to be able to retail their products (body hygiene), ‘insofar as skin cosmetics products [do] not fall in the pharmacists’ monopoly, (…) [and do not] require, from the viewpoint of the users’ health, any specific advice, [which may] be provided by anyone with adequate skincare or cosmetics training.’
It added that ‘although a restriction by object may benefit from an individual exemption within the meaning of Article 101§3 of the TFEU, it is on the condition that such practice (…) contributes to economic progress and is essential to achieve such progress’ and pointed out that ‘this [was] not alleged [in the case at hand]’.
Didier Ferrier, agency, distribution and franchising Country Expert for France.