COMPETITION • EUROPEAN LAW • RESTRICTIVE AGREEMENTS
Under point 51 of the Guidelines on Vertical Restraints, active sales mean actively approaching individual customers by for instance direct mail, including the sending of unsolicited e-mails, or visits; or actively approaching a specific customer group or customers in a specific territory through advertisement in media, on the internet or other promotions specifically targeted at that customer group or targeted at customers in that territory. Advertisement or promotion that is only attractive for the buyer if it also reaches a specific group of customers or customers in a specific territory, is considered active selling to that customer group or customers in that territory. Unlike passive sales, active sales may be prohibited, but only to members of exclusive distribution networks (Regulation No 330/2010, Art. 4(b)(i)). Apart from that scenario, the prohibiting of active sales constitutes a hardcore restriction which is also excluded from the safe harbor created by the Notice on agreements of minor importance (EU Communication No 2014/С 291/01 of 30 August 2014, pt 13). Furthermore, according to the Vertical Restraints Guidelines, the combination of exclusive and selective distribution is only allowed as long as active sales are not restricted. In addition, according to the Vertical Restraints Guidelines, a combination of exclusive distribution and selective distribution is only authorized if active selling is not restricted.
