Judgment of the Court (Third Chamber) of 13 October 2011 (reference for a preliminary ruling from the Cour d'appel de Paris (France)) - Pierre Fabre Dermo-Cosmétique SAS v Président de l'Autorité de la Concurrence, Ministre de l'Économie, de l'Industrie et de l'Emploi
(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)
Language of the case: French
Referring court
Cour d'appel de Paris
Parties to the main proceedings
Applicant: Pierre Fabre Dermo-Cosmétique SAS
Defendants: Président de l'Autorité de la Concurrence, Ministre de l'Économie, de l'Industrie et de l'Emploi
Intervening parties: Ministère public, European Commission
Re:
Reference for a preliminary ruling - Cour d'appel de Paris - Competition - General and absolute ban on internet sales of cosmetics and personal care products imposed by the supplier on authorised distributors in the context of a selective distribution network - Obligation to sell such products in a physical space in which a qualified pharmacist must be present - "Hardcore" restriction of competition by object under Article 81(1) EC which cannot benefit from a block exemption under Commission Regulation No 2790/1999 of 22 December 1999 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices (OJ 1999 L 336, p. 21) - Possibility of benefiting from an individual exemption under Article 81(3) EC
Operative part of the judgment
Article 101(1) TFEU must be interpreted as meaning that, in the context of a selective distribution system, a contractual clause requiring sales of cosmetics and personal care products to be made in a physical space where a qualified pharmacist must be present, resulting in a ban on the use of the internet for those sales, amounts to a restriction by object within the meaning of that provision where, following an individual and specific examination of the content and objective of that contractual clause and the legal and economic context of which it forms a part, it is apparent that, having regard to the properties of the products at issue, that clause is not objectively justified.
Article 4(c) of Commission Regulation (EC) No 2790/1999 of 22 December 1999 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices must be interpreted as meaning that the block exemption provided for in Article 2 of that regulation does not apply to a selective distribution contract which contains a clause prohibiting de facto the internet as a method of marketing the contractual products. However, such a contract may benefit, on an individual basis, from the exception provided for in Article 101(3) TFEU where the conditions of that provision are met.
____________1 - OJ C 24, 30.1.2010.