Judges CG Fernlund, A Arabadjiev, S Rodin, E Regan
Advocate General N Wahl
The claimant supplier sold luxury cosmetics in Germany and marketed certain brands by way of “vertical agreements” via a selective distribution network which it justified to support the luxury image of its brands. The defendant distributor had, for many years, distributed the claimant’s goods, as an authorised distributor, both at its brick-and-mortar locations and over the internet, ut partly through its own online store and partly via the platform “amazon.de”. Following the entry into force of Commission Regulation (EU) No 330/2010, the claimant revised the selective distribution network contracts by providing that the authorised retailer was entitled to offer and sell the products on the internet, provided that internet sales activity was conducted through an “electronic shop window” of the authorised store and the luxury character of the products was preserved. In addition, a supplemental agreement expressly prohibited the use of a different business name as well as the recognisable engagement of a third-party undertaking which was not an authorised retailer. The defendant refused to sign the amendments to the selective distribution contract and the claimant brought an action before the national court, seeking an order prohibiting the defendant from distributing products bearing the brand via the platform “amazon.de”. The national court dismissed the action on the ground that the contractual clause was contrary to article 101(1)FEU of the FEU Treaty. The claimant appealed to the Higher Regional Court, Frankfurt, Germany, which stayed the proceedings and referred questions for preliminary ruling concerning the interpretation of article 101(1)FEU and article 4 of Regulation No 330/2010.
On the reference—
Held, (1) a selective distribution system for luxury goods designed, primarily, to preserve the luxury image of those goods complied with article 101(1)FEU to the extent that re-sellers were chosen on the basis of objective criteria of a qualitative nature that were laid down uniformly for all potential re-sellers and applied in a non-discriminatory fashion and that the criteria laid down do not go beyond what was necessary (judgment, para 36, operative part, para 1).
(2) Article 101(1)FEU did not preclude a contractual clause which prohibited authorised distributors in a selective distribution system for luxury goods designed, primarily, to preserve the luxury image of those goods from using, in a discernible manner, third-party platforms for the internet sale of the contract goods, on condition that that clause had the objective of preserving the luxury image of those goods, was laid down uniformly and not applied in a discriminatory fashion, and was proportionate in the light of the objective pursued, those being matters to be determined by the referring court (judgment, para 58, operative part, para 2).
(3) Article 4 of Commission Regulation (EU) No 330/2010 on the application of article 101(3)FEU to categories of vertical agreements and concerted practices meant that the prohibition imposed on the members of a selective distribution system for luxury goods, which operated as distributors at the retail level of trade, of making use, in a discernible manner, of third-party undertakings for internet sales did not constitute a “restriction of customers”, within the meaning of article 4(b) or a “restriction of passive sales to end users”, within the meaning of article 4(c) (judgment, para 69, operative part, para 3).
A Lubberger and B Weichhaus for the claimant supplier.
O Spieker and M Alber for the defendant distributor.
T Henze and A Lippstreu, agents, for the German Government.
D Colas and J Bousin, agents, for the French Government.
G Palmieri, agent, and by D Del Gaizo for the Italian Government.
A Germeaux, and by P E Partsch and T Evans for the Luxembourg Government.
M Bulterman, M de Ree and J Langer, agents, for the Netherlands Government.
G Eberhard, agent, for the Austrian Government.
A Falk, C Meyer-Seitz, H Shev and L Swedenborg, agents, for the Swedish Government.
G Meessen, H Leupold and T Christoforou, agents, for the European Commission.