Online sales restrictions under scrutiny of European Antitrust Authorities

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Antitrust authorities in Europe are getting more and more rigid with regard to clauses that restrict or ban online sales, especially sales over internet platforms such as Amazon and eBay. In principle, the EU Commission in its Vertical Guidelines requires that every distributor must be allowed to use the internet to sell products. However, regarding third-party internet platforms, the EU Commission accepts in margin number 54 Vertical Guidelines that a supplier may ban sales over those platforms by requiring that customers do not visit the distributor’s website through a site carrying the name or logo of the third-party platform. Competition authorities, specifically the German FCO, appear not to follow this approach in all cases and require ‘objective reasons’ for banning online platforms.

The prohibition on anti-competitive agreements (Art. 101 [1] Treaty of the European Union) also covers agreements that limit or ban online sales. Such anti-competitive agreements may be exempted from the prohibition and thus be lawfully implemented, if the Vertical Block Exemption Regulation (VBER) is applicable, in other words specifically no hard-core restrictions are involved…

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