COMPETITION • FRENCH LAW • RESTRICTIVE AGREEMENTS
The prohibition of online sales stipulated in a selective distribution agreement with respect to authorized distributors with a physical point of sale must be considered as a restriction of active and passive sales in violation of Article L. 420-1 of the Commercial Code, insofar as it necessarily has a restrictive object. Similarly, the de facto prohibition of sales on the internet, imposed by the operator of a selective distribution network on its authorized distributors, which results from the combination of the terms of the distribution contract and a circular, the requirement of the presence at the point of sale of a salesperson with a pharmaceutical diploma, an obligation to physically hand over the equipment, or the obligation to sell the contract products from the point of sale declared to the supplier, constitutes a hardcore restriction which cannot be covered by the block exemption. The promoter of a network cannot moreover subject the faculty to distribute the contractual products on Internet to heavy obligations in terms of human, financial and technical means, which are not necessary in view of their nature.
Moreover, in contrast to decisions handed down in the matter of interim or protective measures, which were hostile to the prohibition of the sale of contractual products on marketplaces, the Court of Cassation ruled that such sales, in violation of a contractual provision, could constitute a manifestly unlawful disturbance. The Court of Justice subsequently upheld the lawfulness of the prohibition on the use in a discernible manner of third party platforms for the distribution of luxury goods. The Competition Authority extended the scope of the prohibition to high-tech or dangerous products (e.g. outdoor power equipment).
