Most Read Contributor in Netherlands, January 2017
Lately, the answer to whether competition rules apply to the
banning of selling products via third-party online market places
seems to depend on who you ask. For instance, a Dutch district
court recently ruled that there was nothing wrong with a supplier
terminating a selective distribution agreement for violating the
contractual ban on selling via third-party internet platforms. The
German competition authority earlier criticised these sales bans,
although some German courts seem to adopt a more liberal approach.
The European Commission also seems less strict in its guidelines on
vertical restraints, and the same goes for the Dutch Authority for
Consumers and Markets. These differences in treatment force
companies wanting to implement a uniform distribution policy in
various countries to go for the safest option. The time may have
come for an EU-wide approach.
The Gelderland District Court recently had to rule in preliminary relief proceedings
whether Shure, a manufacturer of high-quality professional audio
products, had rightfully terminated its selective distribution
agreement with the claimant. Shure had presented three reasons for
terminating the claimant's agreement:
Violation of the contractual obligation not to sell Shure
products through third-party platforms such as Amazon and
Hitmeister. According to the court, Shure's reason for this ban
(to ensure a high service-level by requiring its distributors to
also have a brick and mortar shop) was plausible. The decisions in
Asics and Adidas, criticising third-party platform
bans, were set aside by the court because they were issued by the
German competition authority.
Constant sending of e-mails requesting Shure, amongst others,
to deal with other selective distributors charging prices below
Shure's recommended resale price. Despite Shure's repeated
answer that it was legally prohibited from fixing resale prices,
the claimant continually sent e-mails on this subject. The court
considered it understandable that Shure found this
Selling Shure products to unauthorised resellers. Given the
lack of additional information, the court considered that the
seriousness of this contractual violation could not be
The court concluded that Shure's reasons for terminating the
agreement were understandable. Also, the court found that Shure
could terminate the contract on the basis of the freedom of
This ruling shows that there is no clear message yet on how
third-party platform sales bans will be treated under the
competition rules. As stated earlier, the German competition
authority is critical of third-party platform sales bans, although
some German courts seem to adopt a more liberal approach: see, for
ruling by the Higher Regional Court of Frankfurt allowing a ban
against distributing through a specific online third-party
platform. The European Commission's guidelines on vertical restraints also seem
less strict by providing that if a distributor's website is
hosted by a third-party platform, a supplier can require that
customers not visit the distributor's website through a site
carrying the name or logo of the third-party platform. And the
Dutch Authority for Consumers and Markets has indicated that it
will stick to its more liberal approach to vertical restraints (see
for more our In Context of
January 2015 and
All in all, the time has come for an EU-wide approach: see our
Best Friends newsletter for more information
on E-commerce and vertical restraints.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Any person who claims to be the victim of anti-competitive practices and wishes to seek compensation for the prejudice they consider to have suffered must prove before the civil courts that the three conditions of third party liability under general laws –negligence, competitive harm, and direct causal link– have been met.
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