Markus Reisinger ‘Asics vs Coty: Competitive effects of selective distribution systems in light of diverging court decisions’

Selective distribution systems are usually put in place in place to ensure that authorized distributors fulfil a certain quality standard, thereby avoiding losses in consumers’ brand valuation. Selective distribution systems often include clauses that allow manufactures to achieve better channel coordination in terms of prices, advertising, services, etc. A common way to do so is to restrict their selective retailers in advertising or pricing practices (e.g. to ensure that advertising campaigns or sales are coordinated). The paper – which can be found here – looks at recent German and EU cases on selective distribution systems, and tries to understand the differences between them. In the Asics case, the German Bundeskartellamt (BKartA) ruled that a selective distribution system by sport shoe manufacturer Asics, which included restrictions regarding online advertisement and price search engines, infringed competition law. By contrast, in the Coty case the European Court of Justice ruled that relatively similar clauses in the selective distribution system of a beauty products manufacturer were…

Maria José Schmidt-Kessen ‘Selective Distribution Systems in EU Competition and EU Trademark Law: Resolving the Tension’ (2018) Journal of European Competition Law & Practice 9(5) 304

The basic argument of this paper – which can be found here – is that the ECJ in Coty reversed its earlier judgment in Pierre Fabre as regards luxury products, in order to ensure that the treatment of selective distribution systems under EU trademark and competition law was aligned. A first section provides an overview of the treatment of online selling restrictions under European competition law. Some luxury brands fear that retailers might damage their valuable brands’ reputation by offering branded goods in an inadequate online environment, e.g. without adequate costumer service; and that allowing online sales by retailers could lead to an increase in trade of counterfeited goods over the internet. As such, they have imposed on their retailers considerable restrictions on the possibility of using the internet as a selling channel, often in the context of selective distribution systems. These restrictions have led to competition law cases being brought against manufacturers who impose them. These cases build on…

Giuseppe Colangelo and Valerio Torti, looks at ‘Selective Distribution and Online Marketplace Restrictions under EU Competition Rules after Coty Prestige’ (2018) European Competition Journal 14 (1) 81

This paper – which can be found here – looks at the Coty decision, and it structured as follows: Section 2 provides an overview of how EU competition law dealt with selective distribution systems pre-Coty. It begins by looking at the Metro decisions. In Metro I, the CJEU decided that the maintenance of a certain price level for specialist retailers and wholesalers was a legitimate goal. In this decision, the CJEU recognised that that selective distribution agreements are compatible with competition rules if they fulfil three cumulative conditions: (i) the characteristics of the product in question necessitate such a distribution scheme in order to preserve its quality or to ensure its proper use; (ii) resellers are chosen on the basis of objective criteria of a qualitative nature relating to the technical qualifications of the reseller and his staff and the suitability of his trading premises, laid down uniformly for all potential resellers and not applied in a discriminatory fashion; (iii) the…

Alison Jones ‘ Antitrust Appraisal of Vertical Agreements in the ASEAN Economic Community’ in Ong (ed.) The Regionalisation of Competition Law and Policy within the ASEAN Economic Community (2018, CUP)

This paper – which you can find here – looks at the different approaches to vertical agreements across ASEAN. The paper draws on practice and experience in the US and EU to consider whether, and if so how, the approach to vertical agreements under the competition law systems of ASEAN countries should be changed in order to ensure a more coherent policy across the region. Following an introduction, Section 2 examines how divergent national policies towards vertical agreements in ASEAN might be damaging competition, efficiency and market integration, and why greater convergence around a harmonised framework might be desirable. It begins by reviewing the outlines of the ASEAN single market and by assessing the role of competition law for its development. It devotes particular attention to the treatment of vertical agreements, which are subject to a spectrum of radically different approaches across the region – from only vertical agreements by dominant companies being subject to competition law in Singapore and…

Ariel Ezrachi ‘The Ripple Effects of Online Marketplace Bans’ (2017) World Competition 40(1) 47

This paper – which you can find here – assesses the economic and legal implications of online marketplace bans in order to determine what treatment they should be subject to under competition law. The discussion opens in Chapter 2 with a review of different types of online marketplaces. Online marketplaces bring together large numbers of sellers and buyers, and in doing so facilitate dynamic competition, both in relation to greater inter-brand competition and in relation to intra-brand competition. Nonetheless, there are various types of such marketplaces, which could be distinguished on the basis of their particular characteristics. These include: (a) whether online marketplaces are pure or hybrid intermediaries (pure intermediaries are merely platforms for buyers and sellers, while hybrid intermediaries provide a sales platform but also act as retailers on their own platform); (b) open or closed marketplaces (any seller can gain access to an open marketplace, while closed marketplaces impose access restrictions); (iii) the type and quality of the interface on…