EU Competition Law Applicable to Distribution Agreements: Review of 2011 and Outlook for 2012

Abstract

After the adoption of the new Block Exemption Regulation on vertical restraints No. 330/2010 and of the ‘motor vehicle pack’, European competition law applicable to distribution agreements seems to have entered into a new era: one of debate and conflict. Three particular fields are now discussed extensively in the case law which will give birth to the law of tomorrow: distribution via the internet, the rivalry between European competition law and the national laws on restrictive practices, and the acceptance of the economic analysis of vertical restraints under substantive law. The discussion is open on all three issues. If the Pierre Fabre decision of the Court of Justice dated 13 October 2011 seems to have fixed for a moment the substantive law, it is not certain that the decision handed down will resist in time as it is based more on a rationale of the free movement of goods rather than on competition law. In any case, the regulation of internet sales by the Commission is too restrictive and will certainly give rise to further evolutions. The conflict between European competition law and national laws on restrictive practices, which seemed to have been dealt with in the framework of Regulation 1/2003, is back on the agenda. Finally, the economic analysis of vertical restraints, clearly affirmed and applied by the ‘new generation’ block exemption regulations, is still hindered in practice by strong resistance from the national courts and authorities. Competition law applicable to distribution agreements therefore appears to be a law in perpetual motion whose internal conflicts ensure progress.