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CASE NOTE – JUDGMENT OF THE EUROPEAN COURT OF JUSTICE,
13 OCTOBER 2011, PIERRE FABRE DERMO-COSMÉTIQUE SAS, C-439/09
CONCERNING ANOTHER RESTRICTION BY OBJECT ON INTERNET
SALES BAN
Dr. iur. Verena Klappstein, London School of Economics
(Article 101(1) and (3) TFEU – Regulation (EC) No 2790/1999 – Articles 2 to 4 –
Competition – Restrictive practice – Selective distribution network – Cosmetics and
personal care products – General and absolute ban on internet sales – Ban imposed by
the supplier on authorised distributors)
I – Introduction
The European Court of Justice (ECJ) ruled in line with recent case-law 1 on the
general and absolute de facto ban of internet sales in a selective distribution network.
Thereby strengthening the internet as a sales channel. Neither the protection of
customers against the incorrect use of products 2 nor the manufacturer's intention to
maintain its prestigious image 3 were legitimate aims to justify such a ban.
Furthermore the safe harbour provided in the vertical agreements block exemption
regulation (Regulation (EC) No 2790/1999, VABER 4 ) was narrowed, 5 with the
application of Article 101(1) TFEU expanded. This decision of the ECJ's purports the
Commission's view in its re-draft of VABER.
II – The Significant Facts
Pierre Fabre Dermo-Cosmétique SAS (PFDC) produces and sells cosmetics. These
cosmetics are primarily sold in pharmacies, however they are not medicines. PFDC's
French market share in 2007 was approximately 20% 6 . Distribution contracts for four
brands of its products stipulated that sales had to be “made exclusively in a physical
space, in which a qualified pharmacist must be present” 7 . With this provision PFDC
excluded de facto online sales. After a general investigation of the distribution
practices in the cosmetics sector, the French Competition Authority (Conseil de la
concurrence) ordered PFDC “to remove from its selective distribution contracts all
terms that are equivalent to a ban on internet sales [...] and to make express provision
in its contracts for an option for its distributors to use that method of distribution [and]
to pay a fine of EUR 17 000” 8 . PFDC appealed this order before the cour d’appel de
Paris, reasoning that the decision was illegal as it denied the block exemption of
VABER as well as the individual exemption of Article 101(3) TFEU. The cour
d’appel de Paris asked the ECJ two questions in the preliminary process:
1 ECJ 2 December 2010 (Ker-Optika bt C-108/09) Para 76.
2 See below: IV(a).
3 : See below: IV(a).
4 Regulation (EC) No 2790/1999 of 22 December 1999, OJ L 336/21.
5 See below: IV(b).
6 ECJ 13 October 2011 Pierre Fabre Dermo-Cosmétique SAS C-439/09 PARA 11.
7 Pierre Fabre Dermo-Cosmétique (n6) para 12.
8 Pierre Fabre Dermo-Cosmétique (n6) para 27.