Article 101, paragraph 1, of the Treaty on the Functioning of the European Union (TFUE) provides that an agreement violates EU competition law by preventing, limiting or distorting competition in the internal market. However, it is generally accepted that selective distribution agreements are not covered by this restriction, provided that three conditions are met. These conditions are defined in the case of Metro I. First, the products concerned must be marketed selectively. Second, distributors must be selected on the basis of objective and qualitative criteria. Third, conditions must be set uniformly and applied in a non-discriminatory manner. If these conditions are met, it is likely that Article 101, paragraph 1, will not apply and that your agreement does not violate EU competition law. If you feel that your agreement is or may still be held hostage under Article 101, paragraph 1, the next step will be to consider whether your agreement is eligible for an individual exemption under Article 101, paragraph 3. Selective distribution agreements to prevent distributors from entering into cross-border sales are not permitted. THE VABER contains two territorial restrictions specific to selective distribution. The articulation of jurisdictional solutions based on the general law of responsibility and competition law with regard to the refusal to allow candidates for the network meeting the selection criteria set by the organizer of a selective distribution network remains at the heart of this quarter`s case (…) Most distribution contracts are entered into intuitu personae when the parties generally agree that the distributor must obtain the supplier`s agreement before it can sell its contractual position, shares or value. Such clauses should normally be interpreted strictly, (…) In a judgment handed down on 31 July 2019 under the presidency of Laurent Bedouet, the Presidential Council, Chamber 5-4 of the Paris Court of Appeal confirmed with some insistence that a dealer does not have the right to sue a (…) In the context of selective distribution, VABER (article 4, point c) finds that this is a marked restriction: voluntarily or reluctantly, selective distribution brands now admit it: they cannot prohibit their physical distributors from reselling their products online.
While they are gradually adapting their trade policy and treaties to this situation, the past sometimes goes back in time, (…) In accordance with Article 3/f of Press Release No. 2005/4, a selective distribution system refers to a distribution system in which the supplier undertakes to sell, directly or indirectly, the goods or services subject to the agreement only to distributors or licensed services, and where these authorized distributors or services are required not to sell these goods and services to unauthorized distributors and services.