An online auction operator claimed that the selective distribution agreements concluded by perfume suppliers should not be eligible for the block exemption of Regulation no. 2790-1999 (replaced by regulation no. 330-2010), insofar as they contained ‘prohibited clauses’ whereby ‘distributors had to undertake to give priority to physical points of sale’ and ‘distributors who operated only online were excluded.’
The Paris Court of Appeals rejected its claim, pointing out that the suppliers ‘did not by any means prohibit those of their approved distributors who have physical points of sale from using the Internet to sell and promote the perfumes,’ but that, to the contrary, the suppliers ‘reserved that possibility only for them, thereby excluding operators who had no actual store.’
Accordingly, the suppliers ‘did not exclude a form of marketing capable of promoting sales’ but ‘simply sought to give preference to distribution via physical points of sale, which does not constitute a violation of Article [101 of the FEU Treaty] or of Article 4 (c) of regulation no. 2790-1999.’
Didier Ferrier, agency, distribution and franchising Country Expert for France.