Following a decision from the French Competition Authority sanctioning Pierre Fabre Dermo-Cosmétique on October 29, 2008, the later lodged an appeal. The Court of Appeal of Paris addressed a reference for a preliminary ruling to the ECJ to know whether a total and absolute prohibition on selling contract products on the Internet, imposed on selected distributors within the framework of a selective distribution network, constitutes an infringement of Competition law of the European Union. Pierre Fabre Dermo-cosmétique manufactures and markets cosmetics and personal care products. In the agreements with distributors, a clause required sales to be made exclusively in a physical space, in which a qualified pharmacist must be present.
On October 13, 2011, the ECJ (1) confirmed the French Competition Authority decision.
First of all, the ECJ stated that a clause in a selective distribution contract banning the distributors of the company Pierre Fabre Dermo-cosmétique from selling its products online amounts to a restriction on competition by object (2), unless that clause is objectively justified, in particularly regarding to the properties of the products at issue. From there, the ECJ held that the clause requiring sales of cosmetics and personal care products to be made in a physical space where a qualified pharmacist must be present is not objectively justified in the context of the sale of non-prescription medicines.
Then, such a ban may be the object of an exemption. As to whether a selective distribution contract may benefit from the vertical block exemption (3), the ECJ held that the provisions of the vertical block exemption could not apply to a selective distribution agreement which contained a clause prohibiting de facto the use of the internet as a method of marketing the contractual products. However, such contract may benefit from the individual exemption (article 101.3 of the TFEU) provided that the conditions of that provision are met. This element will be decided upon by referring French Court of Appeal. Its decision is expected in the course of the first semester of 2012.
(1) ECJ, 13 oct. 2011, aff. C 439/09, Pierre Fabre Dermo-Cosmétique c/ Président de l’Autorité de la concurrence e.a.
(2) Art 101 of the TFEU (Treaty of the Functioning of the EU of 1st December 2009
(3) Commission Regulation (EC) No 2790/1999 of 22 December 1999 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices (OJ 1999 L 336, p.21).