COmpetition • european law • restrictive agreements
Under point 51 of the Guidelines on Vertical Restraints, passive sales are sales by distributors responding to unsolicited requests from individual customers, including delivery of goods or services requested by those customers. Any advertising or promotional activity that reaches customers located in other distributors’ exclusive territories, or that constitutes a customer base allocated to other distributors, but which is a reasonable means of reaching customers outside such territories or customer groups, for example to reach customers located in its own territory, is considered passive selling. The Commission, regards advertising or general promotional activities to be a reasonable way to reach such customers if it would be attractive for the distributor to make such investments even if they would not reach customers located in other distributors’ exclusive territories or as part of a customer base allocated to other distributors. As a rule, a distributor’s use of a website to sell products is considered a form of passive selling. Where a customer visits a distributor’s website and contacts the distributor and that contact leads to a sale, including a delivery, it is a passive sale. The same applies when a customer chooses to be automatically informed by the distributor and this leads to a sale. Unlike active sales, passive sales are traditionally allowed and their prohibition is deemed anticompetitive by the competition authorities. Regulation No 330/2010 thus excludes the prohibition of passive sales from the block exemption (Art. 4(b) and( c)). This (hardcore) restriction also excludes the benefit of the safe harbor mechanism created by the Notice on agreements of minor importance and is therefore subject to review regardless of the market share of the infringers (EU Commission Communication2014/С 291/01 of 30 August 2014, pt 13).
