Selective Distribution in the Age of E-Commerce: An Overview of EU and National Developments

Abstract

In recent years, the growth of e-commerce has significantly reshaped undertakings’ business and distribution strategies. Not only is the use of selective distribution on the rise, but manufacturers are also imposing more and novel types of restraints to control the conditions of retail. They are also increasingly competing with their distributors by selling the contract goods directly through their own online shops, and are using vertical restraints to regulate the emerging competition. The European courts and enforcement agencies are currently contending with how to assess these new restraints (e.g. bans on online selling and restrictions on the use of third-party platforms, search engines and online advertising) under legal principles that were developed in the 1970s for brick and mortar outlets. This contribution reviews key developments and questions currently occupying the European enforcement agencies and courts. It concludes that, while the European competition agencies have actively enforced Article 101 TFEU against selective distribution agreements in recent years, there is still a great deal of legal uncertainty on how to assess restraints that impede the distributors’ ability to sell and market the contract goods online. This has resulted in diverging approaches in different EU Member States. The current review of Regulation 330/2010 and its accompanying guidelines are a welcome and necessary opportunity for the Commission to provide more clarity and spell out more detailed and up-to-date guidance in the interest of a uniform application of EU competition law.