Internet sales
Dealing with different price levels
Geo-blocking
Budapest
October 31, 2016
Avv. Mariaelena Giorcelli
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Selling through the Internet
The choice of selling on-line:
• Direct sale through one’s website
• Sale through on-line intermediaries
• Sale through on-line retailers
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Dealing with different price levels in
different countries
• Reasons for differentiating prices
• What limitations can be imposed on distributors?
3
Limiting sales through Internet by
distributors
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Art. 101 TFEU
1. The following shall be prohibited as incompatible
with the internal market: all agreements between
undertakings [...] which may affect trade between
Member States and which have as their object or
effect the prevention, restriction or distortion of
competition with the internal market […].
3. The provisions of paragraph 1 may, however, be
declared inapplicable in the case of an agreement
[…] between undertakings […] which contributes to
improving the production or distribution of goods or
to promoting technical or economic progress […].
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Regulation EU 330/2010
Art. 4:
• vertical agreements which have as their object the
restriction of passive sales into the exclusive
territory or to an exclusive customer group reserved
to the supplier or allocated by the supplier to
another buyer, are in any case prohibited.
• in the selective distribution system vertical
agreements that have as their object the restriction
of active or passive sales to end users by members
of a selective distribution system are prohibited.
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Are Internet sales active or passive sales?
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Guidelines on Vertical Restraints
(2010/C 130/01)
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ECJ 13 October 2011 C-439/09 –
Pierre Fabre
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The prohibition of selling through third
parties platforms
• ECJ Request for a preliminary ruling from the OLG
Frankfurt April 25, 2016 (Case C-230/16) – Coty
• Preliminary Report on E-commerce Sector Inquiry,
September 15, 2016.
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Pricing policies
• RPM Resale Price Maintenance
• MAP Minimum Advertised Price
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Geo-blocking and Geo-filtering
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Geo-blocking: commercial practices whereby online providers
prevent users from accessing and purchasing consumer
goods/digital content services offered on their website based on
the location of the user in a Member State.
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Geo-filtering: commercial practices whereby online providers
allow users to access and purchase consumer goods/digital
content services cross-border, but offer different terms and/or
conditions depending on the location of the user in a Member
State different from that of the provider.
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Proposal for a EU Regulation on Geoblocking
May 25, 2016
• Access to internet interfaces
• Access to goods and services
• Payment conditions
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Article 20(2) of Directive 2006/123/EC
the Service Directive
(2) Member States shall ensure that the general
conditions of access to a service, which are made
available to the public at large by providers, do not
contain discriminatory provisions relating to the
nationality or place of residence of the recipient, but
without precluding the possibility of providing for
differences in the conditions of access where those
differences are directly justified by objective
criteria.
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Whereas (95) of Directive 2006/123/EC
the Service Directive
[…] It does not follow that it will be unlawful discrimination
if provision were made in such general conditions for
different tariffs and conditions to apply to the provision
of a service, where those tariffs, prices and conditions are
justified for objective reasons that can vary from
country to country, such as additional costs incurred
because of the distance involved or the technical
characteristics of the provision of the service, or different
market conditions, such as higher or lower demand
influenced by seasonality, different vacation periods in the
Member States and pricing by different competitors, or
extra risks linked to rules differing from those of the
Member State of establishment. […]
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Thank you!
Avv. Mariaelena Giorcelli
[email protected]
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