After gathering information from nearly 1800 stakeholders from
all 28 EU Member States and collecting around 8000 distribution
agreements, the EU Commission published on 15 September a
preliminary report on the findings of its ongoing competition
sector inquiry into e-commerce.1
The inquiry was launched by the Commission in May 2015, after
finding that despite the growing significance for e-commerce across
EU countries over the last years (approximately 50% of the
population of the Union shopped online in 2014), cross-border
online trade remained limited.
While such limitations may have been attributable to language
barriers, consumer preferences or differences in legal frameworks
between Member States, the Commission sought to investigate the
sector based on indications that companies active on the e-commerce
market may be engaged in anticompetitive agreements.
Unsurprisingly, the first results of the inquiry indicate most
of the digital barriers were raised by companies themselves, mainly
through geo-blocking practices.2
What are the main contractual sales restrictions identified by
The e-commerce market of consumer goods has been subjected to
the unbridled development of selective distribution agreements
which represent a privileged field for cross-border sales
Indeed, half of the retailers that replied to the sector inquiry
reported that they were affected by at least one contractual sales
restriction, whether in the form of price recommendations or price
restrictions, restrictions from selling on online market places,
restrictions from submitting offers to price comparison websites or
restrictions on cross-border sales.
In the e-commerce of digital content, geo-blocking practices
appear to be even more widespread: seven out of ten respondent
digital content providers reported having implemented at least one
type of geo-blocking measure, and the large majority of respondents
have contractually agreed with holders of the copyrights in the
content to geo-block access to their online digital
content services for users from other Member States.
These practices could be all the more harmful because rights
holders tend to have relatively long-term licensing agreements with
digital content providers (sometimes even more than 10 years).
What are the next steps?
Should the final results of the e-commerce inquiry reveal
serious anticompetitive concerns, the Commission may open further
case investigations to ensure compliance with EU rules on
restrictive practices and abuse of dominant positions (Articles 101
and 102 of the Treaty on the Functioning of the European
Any competition enforcement measure would have to be based on a
case-by-case assessment, which would also include an analysis of
potential justifications for restrictions that have been
Meanwhile, the preliminary report is open to public consultation
for a period of two months and the Commission expects to publish
the final report in the first quarter of 2017.
1 The Commission can conduct inquiries into sectors of
the economy where there are indications that competition is
restricted or distorted.
2 Geo-blocking practices prevent consumers from accessing
certain websites on the basis of their residence, or credit-card
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