Filippo Amato, Jun 30, 2010
Various questions arise with regard to the type of internet sales restrictions that a supplier can impose upon its distributors. For instance, should internet sales be qualified as active or passive sales? Can a supplier impose an outright ban on internet sales upon its distributors and, if the answer is positive, under what circumstances? What restrictions on internet sales can be imposed on the members of a selective distribution network? These questions are not new, however. Indeed, many of them were already debated following the adoption of the Former Regulation, and addressed, albeit rather briefly, in the Former Guidelines.
Realizing that the increasing level of internet sales constituted one of the major market developments in recent years, in July 2009 the Commission announced that it would review the Former Guidelines in order to provide, inter alia, more guidance on the issue of internet sales. It is therefore not surprising that the guidance concerning internet sales provided in the Guidelines constitutes the Commission’s most, if not the primary, debated novelty introduced into the law on vertical restraints.
To fully appreciate the significance and impact of the new guidance, the following sections describe: (i) how the Commission treated internet sales under the Former Guidelines, (ii) how national courts and competition authorities have dealt with internet sales restrictions during the period of applicability of the Former Guidelines, (iii) the clarifications and changes concerning internet sales proposed by the Commission in its 2009 draft guidelines on vertical restraints (the “Draft Guidelines”), and (iv) the approach eventually adopted by the Commission in the final text of the Guidelines.