On 18 March 2025, the Italian Competition Authority (AGCM) opened an investigation against the company Morellato S.p.A. for alleged anti-competitive conduct.
In particular, this conduct consists in prohibiting the members of its (selective) distribution network from selling products on online platforms managed by third parties (‘marketplaces’), and the alleged unlawfulness of this conduct would derive from the fact that Morellato itself, on the other hand, sells on the Amazon.it platform, through its own virtual shop.
From the information gathered from the AGCM’s decision to open the investigation, it appears that Morellato’s selective distribution contract, with regard to online sales, allows distributors to sell through their own website (in accordance with specific criteria), while it prevents them from selling through third party platforms such as Amazon, Ebay, etc.
As is well known, Article 4 of the European Commission’s Regulation (EU) No 720/2022 of 10 May 2022 exempting Vertical Agreements on the application of Article 101(3) TFEU (hereinafter, the ‘VBER’) identifies certain restrictions (‘hardcore restrictions’), which result in the loss of the benefit of the exemption.
In particular, pursuant to Art. 4.1 (e):
“The exemption provided for in Article 2 shall not apply to vertical agreements which, directly or indirectly, in isolation or in combination with other factors under the control of the parties, have as their object:
(e) the prevention of the effective use of the internet by the buyer or its customers to sell the contract goods or services, as it restricts the territory into which or the customers to whom the contract goods or services may be sold within the meaning of points (b), (c) or (d), without prejudice to the possibility of imposing on the buyer:
(i) other restrictions of online sales; or
(ii) restrictions of online advertising that do not have the object of preventing the use of an entire online advertising channel; (…)’
Therefore, as follows from the text of the VBER and as also confirmed by the Interpretative 2022 Guidelines issued by the European Commission, in principle a selective distribution agreement falling under the scope of the VBER should be able to include a restriction on online sales, imposed on selective distributors, to the extent that such restriction does not prevent their effective use of the internet.
In the present case, it could be questioned whether a restriction on sales on marketplaces would prevent the effective use of the Internet, given that the selective distributors are still allowed to sell online via their own website.
However, the Authority draws attention to the circumstance that Morellato, while preventing sales via marketplaces to its selective distributors, nevertheless sells itself via the Amazon platform.
On this point, the AGCM refers to the so-called ‘Metro criteria’, stating, in particular, that:
“31. The reported conduct, which concerns the commercial relations between Morellato and its own network of distributors, appears to constitute a vertical restriction, agreed with its own authorised distributors, consisting in the explicit prohibition, of a discriminatory and non-proportional nature, of the sale of jewellery and watches on marketplaces where Morellato itself is active, apparently not justified by requirements of a qualitative nature.
32. In fact, the factors highlighted above lead to the conclusion that the commercial terms adopted by Morellato, in the context of its vertical relationships with its distributors active online, are liable to constitute a prohibited cartel, within the meaning of Article 101 TFEU, in so far as they are capable of restricting the competitive development of the distribution channel in question.
33. Restrictions agreed with retailers in connection with sales through third-party platforms, insofar as they are intended to discourage and/or discriminatorily permit the use of a specific online sales method, could result in obstacles to the effective use of the internet for the sale of products to certain customers or territories.
34. Moreover, the discriminatory nature of the restriction, whereby the contract gives Morellato access to a sales channel precluded to distributors, even with reference to the criteria laid down by European case law and crystallised in the Commission’s Guidelines, is indeed a symptomatic indication of the clause’s lack of proportionality in relation to the purpose – declaredly envisaged by the contractual provisions based on a system of selective distribution – of safeguarding the image of the supplier’s products.”
In particular, the AGCM refers to a provision of the VBER’s Interpretative Guidelines (§ 338) which provides:
“ Restrictions on the use of online marketplaces are often agreed in selective distribution systems. Section 4.6.2 sets out the criteria according to which a selective distribution system may fall outside the scope of Article 101(1) of the Treaty. In instances where the supplier does not enter into an agreement with the online marketplace, the supplier may be unable to verify that the online marketplace meets the conditions that its authorised distributors must fulfil for the sale of the contract goods or services. In that case, a restriction or ban on the use of online marketplaces may be appropriate and not go beyond what is necessary to preserve the quality and ensure the proper use of the contract goods or services. However, in cases where a supplier appoints the operator of an online marketplace as a member of its selective distribution system, or where it restricts the use of online marketplaces by some authorised distributors but not others, or where it restricts the use of an online marketplace, but uses that online marketplace itself to sell the contract goods or services, restrictions on the use of those online marketplaces are unlikely to fulfil the conditions of appropriateness and proportionality.”
In light of the foregoing, the Italian Competition Authority decided to open an investigation against Morellato to assess whether such restriction, in light of the circumstances of the case, constitutes an infringement of competition within the meaning of Article 101 TFEU.
Silvia Bortolotti, IDI Vice-Chair/Secretary General and Country Expert for Italy
