-
Spagna
Spain – The Spanish sentence on the European super league: everyone is happy
26 Luglio 2024
- Antitrust
The Commercial Court No. 17 of Madrid has ruled in the SuperLiga case following the guidelines set by the CJEU in its decision of December 21 last year.
The lawsuit was filed by ESCL, an entity formed by Real Madrid and other soccer clubs to promote the SuperLiga, most of which abandoned the project due to pressure from fans and their governments against FIFA and UEFA, with RFEF and La Liga voluntarily joining the defendants.
As usually happens with elections, but not with sentences, everyone, plaintiffs and defendants, has shown their satisfaction with this ruling, which is not yet final, as it can be appealed before the Provincial Court of Madrid.
In brief, the proceedings involved whether the FIFA/UEFA regulations on the organization and authorization of soccer competitions and the management of the rights deriving from such competitions were in accordance with Community competition law, articles 101 and 102 of the TFEU.
The CJEU judgment of last December had already ruled that the regulatory rules of FIFA and UEFA relating to prior authorization and participation, which give these entities the power to prevent any competing company from accessing the market, constitute an abuse of a dominant position and infringe the provisions of Articles 101 and 102 TFEU, mainly because they are not accompanied by certain limits and controls guaranteeing transparency and objectivity in the decision not to authorize such international competitions, which allow the risk of abuse of a dominant position to be excluded.
Likewise, the Court of Justice, using the same arguments and about the exploitation rights deriving from sporting competitions, states that the FIFA and UEFA rules are contrary to the provisions of Articles 101 and 102 TFEU, since they attribute to themselves exclusive responsibility for the marketing of the rights in question.
Following the guidelines set by the CJEU judgment, the judgment of Madrid Commercial Court No. 17 partially upheld the lawsuit filed by ESLC against UEFA and FIFA. It declared that both organizations have abused their dominant position and are preventing free competition in the market by granting themselves the discretionary power to prohibit participation in alternative competitions and impose unjustified and disproportionate restrictions, conduct that infringes Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU).
The ruling condemns FIFA and UEFA to cease the anticompetitive conduct sanctioned and prohibits them from repeating them in the future. It also condemns them to immediately remove all the effects of the anticompetitive actions that occurred before or during the duration of the lawsuit, which began on April 18, 2021, when ESLC announced the launch of the SupeLiga.
Finally, the judgment states that the content of the declarations issued by FIFA, UEFA and other entities (including the federations and leagues of England, Italy and Spain, some of whose clubs were part of the project) on April 18, 2021 (referred to in the lawsuit as the ‘Declaration’) in relation to the pan-European international competition project, also infringes Articles 101 and 102 TFEU.
It should be noted that the judgment expressly states that “inasmuch as the SuperLiga in the terms initially set forth in the lawsuit, i.e. in accordance with the initial project has been abandoned and discarded by the promoters themselves, the motions in relation thereto must likewise lapse; it is not possible to impose a prohibition or restriction in the abstract, i.e. to impose a prohibition in the future of any other project or modification of the one already presented”.
Based on this argument, the Judgment rejects the requests included in section f) of the lawsuit which, in summary, requested that FIFA and UEFA be ordered to refrain from any conduct, measure, or action or issue any statement that prevents or hinders in any way the preparation of the SuperLiga; and the commercial judge concludes by stating in this regard that the purpose of these proceedings is not “the authorization of any competition, but to lay the foundations to channel a system of free competition for the organization of soccer competitions”.
Thereafter, everyone is happy with the result; La Liga issued a statement stressing that the ruling does not endorse a project which, moreover, according to the same ruling, has been abandoned by its promoters. UEFA says that it is pleased to note that the judge has given a good and valid system of prior authorization for third-party competitions to be approved in accordance with UEFA’s authorization rules and has recognized the undoubted benefits of these rules for the soccer sporting system, concluding that “the judgment does not give third parties the right to develop competitions without authorization and does not refer to any future project or to any modified version of an existing project”.
The plaintiffs, too, are happy and content to proclaim that UEFA’s statutes and the aggressive measures taken to protect its monopoly have stifled innovation for decades. Clubs should not have to fear threats of sanctions simply for having ideas and having conversations. The era of monopoly is definitely over.
Rarely does one find that a judgment leaves all the litigants so happy and content, but that seems to be the case here. Or at least that is what all of them have been interested in communicating, when the harsh reality is, on the one hand, that the SuperLiga project as it was structured when the lawsuit started and FIFA/UEFA reacted furiously, is dead and buried, and on the other hand, that the happy world in which FIFA and UEFA regulated soccer and competitions as a private preserve, considered themselves immune and alien to ordinary justice and shared the money generated without being accountable to the Courts of Justice and threatened to expel or expel the rebellious spirits, has come to an end.
Geoblocking is a discriminatory practice preventing customers (mainly on-line customers) from accessing and/or purchasing products or services from a website located in another member State, because of the nationality of the customer or his place of residence or establishment.
The EU Regulation no. 2018/302 of 28 February 2018 on addressing unjustified geoblocking and other forms of discrimination based on customers’ nationality, place of residence or place of establishment within the internal market will enter into force on 2 December 2018.
The current situation
The EU Commission carried out a “mystery shopping” survey on over 10 000 e-commerce websites in the EU. The geoblocking figures are quite high! 63% of the websites do not let shoppers to buy from another EU country (even 86% for electric household appliances and 79% for electronics and computer hardware).
The survey shows also that 92% of on-line retailers require customers to register on their website and to provide them with e-mail address, physical address and telephone number. The registration is denied most of the time because of a foreign delivery address for 27% of the websites. Almost half of the websites give no information about the place of delivery while shopping on the website although this information on delivery restrictions has to be provided in due time during the shopping process. At the end, according to this EC survey, only 37% of the websites truly allow e-shoppers to freely buy on-line from another EU country (without restriction as regards place of establishment, place of delivery and mean of payment).
On the other side, only 50% of European customers buy products from on-line shops based in another EU member State while the value and the volume of e-commerce, globally speaking increase thoroughly year after year, but only on a domestic scope not throughout Europe.
On 23 June 2017, the European Council asked for a real implementation of the Digital Single Market strategy in all its elements including cross border partial delivery, consumer protection and prohibition of undue geoblocking.
The lack of the current legal frameworks
The service directive (n°2006/123/CE) and article 101 of the TFUE address already the discrimination practices based on nationality or place or residence or establishment.
According to article 20 (2) of the service directive, the EU member States must ensure that professionals do not treat customers differently based on their place of residence or establishment or nationality (unless objective exception). On the other side, EU competition law on vertical restraints (article 101 TFUE and the block exemption regulation and its guidelines) considers restrictions on passive sales as hard core restrictions violating EU competition rules. However, both set of rules (service directive and competition law framework) appear not to be fully effective in practice.
With this respect, the recent report of the European commission about the competition enquiry in the e-commerce sector shows, among others, that geoblocking was used at a large scale within the European e-commerce sector.
The aim of the geoblocking regulation
The goal of the geoblocking regulation is to prevent professionals from implementing direct or indirect discrimination based on the nationality, the place of residence or the place of establishment of their customers when dealing with cross border e-commerce transactions.
The scope of the geoblocking regulations
The new Regulation will only apply to online sales between businesses and end-user consumers or businesses.
The new Regulation will apply to websites operated within the European Union or to websites operated outside the European Union but proposing goods or services to customers established throughout in the European Union.
What are the new rules of management of an e-commerce website?
As regards the access to the website
Under the Regulation, a business may neither block nor restrict, through the use of technological measures, access to their online interfaces for reasons related to nationality, place of residence or place of establishment of an internet user. However, businesses are authorized to redirect customers to a different website than the one they were trying to access provided the customer expressly agrees thereto and can still easily visit the website version they originally tried to access.
As regards the terms and conditions of sales of the website
The Regulation forbids businesses from applying different general conditions of access to goods or services according to a customer’s nationality or place of residence or place of establishment (as identified by their IP address in particular) in the following three cases:
- where the goods sold by the business are delivered in a different member state to which the business offers delivery (or where the goods are collected at a location jointly agreed upon by the business and the customer);
- where the business offers electronically supplied services such as cloud, data storage, hosting services etc. (but not services offering access to copyright-protected content such as streaming or online-gaming services);
- where the business supplies services received by the customer in a country in which the business also operates (such as car rental and hotel accommodation services or ticketing services for sporting or cultural events).
As regards the means of payment on the website
The Regulation forbids businesses from applying different conditions for payment transactions to accepted means of payment for reasons related to a customer’s nationality, place of residence or place of establishment, or to the location of the payment account or the place of establishment of the payment service provider (provided that authentication requirements are fulfilled and that payment transactions are made in a currency accepted by the business).
What are the impacts of this regulation on e-retailers?
Although formally excluded from the scope of the Regulation, relations between suppliers and distributors or wholesalers will still be impacted by it since provisions of agreements between businesses under which distributors undertake not to make passive sales (e.g., by blocking or restricting access to a website) for reasons related to a customer’s nationality, place of residence or place of establishment “shall be automatically void”.
The geoblocking regulation therefore impacts distributors twofold: first, directly in their relations with customers (end-user consumers or user-businesses), and second, indirectly in regard to their obligations under the exclusive distribution agreement.
The geoblocking regulation shall have to be coordinated with the existing competition law framework, especially the guidelines on vertical restraints which set up specific rules applying to on-line sales. On-line sales are likened to passive sales. The guidelines mention four examples of practices aiming to indirectly guarantee territorial protection which are prohibited when supplier and exclusive distributor agree:
- that the exclusive distributor shall prevent customers in another territory from visiting their website or shall automatically refer them to the supplier’s or other distributors’ websites,
- that the exclusive distributor shall terminate an online sale if the purchaser’s credit card data show that the purchaser is not from the exclusive distributor’s exclusive territory,
- to limit the share of sales made by the exclusive distributor through the internet (but the contract may provide for minimum offline targets in absolute terms and for online sales to remain coherent compared to offline sales).
- that the exclusive distributor shall pay a higher price for goods intended for sale on the internet than for goods intended for sale offline.
Manufacturers will have to decide whether they adopt a unique European gateway website or multiple local commercial offers, it being known that price differentiation is still possible per category of clients.
Indeed, the new Regulation does not oblige the e-retailers to harmonize their price policies, they must only allow EU consumers to access freely and easily to any version of their website. Likewise, this Regulation does not oblige e-retailers to ship products all over Europe, but just allow EU consumers to purchase goods from whichever website they want and to arrange the shipment themselves, if need be.
Finally on a more contractual level, it is not very clear yet how the new geoblocking rules could impact directly or indirectly the conflict of law rules applicable to consumer contracts, as per the Rome I regulation especially when the consumer will be allowed to handover the product purchased on a foreign website in the country of this website (which imply no specific delivery in the country where the consumer is established).
Therefore B2C general terms and conditions of websites would need to be reviewed and adapted on both marketing and legal sides.
The Court of Justice of the European Union (CJEU) ruled, on December 20, 2017, that the service provided by Uber cannot be regarded as a digital service.
The question raised
The request for preliminary ruling was referred by a decision made by the Juzgado de lo mercantil de Barcelona relating to a dispute between the Asociacion Profesional Elite Taxi and Uber where the first considers that the second offers a paid service consisting of connecting non-professional drivers with persons who wish to make urban journeys, without holding any local administrative license nor authorization.
The question at stake was clearly set by the Court. The starting point is the principle of freedom of services (article 56 TFUE) and its implementation by two directives: the 2000/31 Directive on e-commerce and the 2006/123 Directive on services in the internal market. On the other side, in each of these three set of rules (TFUE, 2000 and 2006 Directives), an exception is made for “transport services”. The question at stake was to know whether the service offered by Uber could be qualified as a digital service (subject only to the national law of establishment of the service provider) or as a transport service (which must comply with the 28 national laws on transport).
The decision of the Court
The Court first stated (i) that “an intermediation service consisting of connecting a non-professional driver using his own vehicle with a person wishes to make an urban journey is, in principle, a separate service from a transport service“, and (ii) that a transport service is defined as “the physical act of moving persons or goods from one place to another by means of a vehicle“. With this fine line between the two types of services, the Court then concluded that the hereabove intermediation service “meets, in principle, the criteria for classification as an “information society service” within the meaning of the Directive 2000/31“.
The CJEU ruled however that the very activity conducted by Uber is “more than an intermediation service consisting of connecting, by means of a smart phone application, a non-professional driver using his or her own vehicle with a person who wishes to make an urban journey“. The Court then explained that Uber “simultaneously offers urban transport services, which it renders accessible, in particular, through software tools such as the application (…) and whose general operation it organizes for the benefit of persons who wish to accept that offer in order to make an urban journey“.
The Court grounded its reasoning with the two following features to qualify Uber’s service as a transport service:
- This intermediation service is “based on the selection of non-professional drivers using their own vehicle, to whom the company provides an application without which (i) those drivers would not be led to provide transport services and (ii) persons who wish to make an urban journey would not use the service provided by those drivers“.
- “Uber exercises decisive influence over the conditions under which that service is provided by those drivers” (e.g. the maximum fare fixed by Uber, the amount cashed in first by Uber and then repaid to the drivers, the quality control of the vehicles and of the drivers by Uber with possible exclusion as a sanction).
The impact for startup using intermediation platforms
Although the Court mentions that the service of Uber is “more” than an intermediation service, and that the provider of this intermediation service “simultaneously offer” urban transport services, which imply that this intermediation service does however exist, the Court judged that specific features should invalidate this intermediation service as a digital service. A more up-to-date approach of what is today the Digital Single Market could have led the Court to choose another solution and stay on the digital side.
The reasoning of the Court does not really constitute a guideline for other intermediation platforms. The shortness of the reasoning might convey a more political decision applying to a US giant like Uber. The briefness of the reasoning may also show the inadequacy of the current EU regulation vis-à-vis the new trends of digital economy, specially the large variety of intermediation platforms business models (the « digital service » to which the Court referred has been defined in the 1998 directive).
It seems that this ruling will not materially impact Uber which is already subject to local transport rules in several EU countries.
This ruling will impact European Uber-like businesses as they will have to take into consideration this decision to build their offer: they will deal with 28 local regulations if they cannot qualify as a digital service. But should they fall into the transport service rules, intermediation platforms will have anyway to control whether national political and judicial authorities implement local transport rules in compliance with the general principles of the TFUE.
As regards service providers dealing with non-transport services, it is difficult to anticipate the real impact of this decision since this ruling is highly focused on the relation between liberalization of services and specific rules applicable to transport.
The author of this post is Christophe Héry.
I produttori di articoli di marca tipicamente puntano ad assicurare lo stesso livello di qualità lungo tutti i canali di distribuzione. Al fine di conseguire tale scopo, essi stabiliscono criteri su come rivendere i propri prodotti. Con l’aumento delle vendite via internet, l’utilizzo di tali criteri è aumentato altrettanto.
Il miglior esempio: Asics. Fino al 2010, la controllata tedesca Asics Deutschland GmbH riforniva i propri distributori in Germania senza applicare criteri particolari. Nel 2011, Asics ha lanciato un sistema di distribuzione selettivo chiamato “Distribution System 1.0“. Esso prevede, tra le altre cose, un divieto generale, per i distributori, di usare strumenti di comparazione dei prezzi nelle vendite online:
“In aggiunta, il distributore autorizzato … non è da ritenersi autorizzato … a supportare la funzionalità di comparazione dei prezzi apportando l’interfaccia specifica d’applicazione (“API”) per tali strumenti di comparazione dei prezzi.” [tradotto]
L’Ufficio federale dei cartelli tedesco (“Bundeskartellamt”) ha stabilito, con decisione del 26 agosto 2015, che il divieto di utilizzare strumenti di comparazione dei prezzi nei confronti di distributori presenti in Germania era nullo in quanto viola l’articolo 101 (1) TFUE e l’art. 1 della Legge contro le limitazioni della concorrenza (cfr. il testo della decisione, di 196 pagine, qui). Il motivo addotto è che tale divieto punterebbe principalmente a controllare e limitare la competizione dei prezzi a spese del consumatore. Asics, per contro, ha presentato ricorso dinnanzi all’Alta Corte Regionale di Düsseldorf, al fine di vedere annullata la decisione dell’Ufficio federale dei cartelli, sostenendo che tale divieto era uno standard di qualità proporzionato nell’ambito del suo “Distribution System 1.0“, mirante a una presentazione uniforme dei prodotti.
Il 5 aprile 2017, l’Alta Corte Regionale di Düsseldorf ha confermato, così come la decisione dell’Ufficio federale dei cartelli, che nell’ambito di sistemi di distribuzione selettiva il divieto generale di usare strumenti comparazione dei prezzi era anticoncorrenziale e con ciò nullo (fasc. n. VI-Kart 13/15 (V); vedi altresì la rassegna stampa dell’Ufficio federale dei cartelli in inglese):
- In particolare, il divieto di strumentazione di comparazione dei prezzi non era dispensato, nell’ambito di una interpretazione teleologica (“Tatbestandsreduktion”), dall’art. 101 co. 1 TFEU. Secondo la Corte, ciò non era necessario al fine di proteggere la qualità e l’immagine di prodotto del brand Asics (ossia la stessa argomentazione dell’Alta Corte regionale di Francoforte nella sua sentenza del 22.12.2015, fasc. n. 11 U 84/14 riguardante gli zaini di Deuter; la Corte suprema federale non dovrà più decidere su tale caso perché la revisione è stata ritirata in marzo 2017, fasc. n. KZR 3/16). La Corte ha dichiarato che il divieto era volto a limitare i compratori, argomentando che i distributori sarebbero stati limitati nell’entrare in una competizione sui prezzi con altri. La presentazione di prodotti all’interno degli strumenti di comparazione dei prezzi non avrebbe danneggiato la qualità o il brand di prodotti Asics. Non avrebbe nemmeno dato “l’impressione di un mercato delle pulci”, nemmeno attraverso la presentazione, in parallelo, di prodotti usati. Inoltre, il divieto di strumenti di comparazione dei prezzi non risolverebbe comunque il problema del “free-riding”. In ogni caso, il divieto generale posto all’utilizzo di strumenti di comparazione dei prezzi non era necessario e perciò illegittimo.
- Il divieto, inoltre, non doveva ritenersi esentato dal regolamento sulle categorie di accordi verticali e pratiche concordate. Al contrario, la Corte ha rilevato che il divieto avrebbe limitato vendite passive (svolte cioè attraverso internet) verso consumatori finali, contrariamente all’art. 4 (c) del regolamento sulle categorie di accordi verticali e pratiche concordate (facendo riferimento alla decisione della Corte di Giustizia dell’UE nel caso di Pierre Fabre, 13 ottobre 2011, fasc. n. C-439/09). Il “principio di equivalenza” (secondo cui le restrizioni valide per le vendite offline così come online non dovrebbero essere identiche, ma funzionalmente equivalenti) non si applicherebbe, in quanto nel commercio tradizionale non ci sarebbero funzioni comparabili agli strumenti di comparazione dei prezzi.
- Infine, il divieto non beneficerebbe nemmeno dell’esenzione individuale di cui all’art. 101 co. 3 TFUE (“difesa dell’efficienza”).
Conclusioni
Secondo l’Alta Corte regionale di Düsseldorf, i produttori non potrebbero proibire generalmente ai loro distributori di usare strumenti di comparazione dei prezzi. Allo stesso tempo, la corte ha rifiutato di concedere l’autorizzazione a un appello contro la propria decisione – che, comunque, può essere richiesto separatamente, tramite la via dell’impugnazione (cfr. artt. 74, 75 della Legge contro le restrizioni in materia di concorrenza). Il futuro sviluppo di criteri limitanti i distributori nella rivendita online resta aperto, in particolare in quanto (i) il caso Coty è attualmente pendente presso la Corte di Giustizia dell’UE (vedi sotto) e (ii) la Commissione UE nella sua inchiesta di settore sull’e-commerce apparentemente sembra favorire i produttori di articoli di marca (vedi sotto).
- La Corte ha lasciato esplicitamente aperte – adducendo che non fossero rilevanti per la sua decisione – la questioni se:
- il divieto di motori di ricerca sia anti competitivo (paragrafo 44 e ss. della decisione);
- il divieto generale di usare piattaforme di terze parti sia anti competitivo (paragrafo 7) – sebbene il “Distribution System 1.0” di Asics vietasse anche piattaforme come Amazon e eBay.
- Se e come produttori di prodotti di lusso o di marca possono continuare a vietare la loro distribuzione via Amazon, eBay e altri mercati in generale verrà probabilmente deciso dalla Corte di Giustizia UE nei prossimi mesi – nel caso Coty (vedi il nostro post “eCommerce: restrizioni su distributori in Germania”) per il quale un’udienza ha già avuto luogo alla fine di marzo 2017.
- Senza pregiudizio per il caso Coty, la Commissione UE, nella propria inchiesta di settore sull’e-commerce del maggio 2017, dichiarato che
- “divieti di marketplaces in generale non producono una proibizione di fatto della vendita online, non restringono l’uso effettivo di internet come canale di vendita indipendentemente dai mercati colpiti dal divieto…”;
- “la potenziale giustificazione ed efficienze riportate dai produttori differiscono da un prodotto all’altro …”;
- “(assoluti) divieti di marketplaces non dovrebbero essere considerati quali restrizioni fondamentali nel significato dell’articolo 4(b) e articolo 4(c) del regolamento su categorie di accordi verticali e pratiche concordate …”;
- “la Commissione o una autorità nazionale della concorrenza potrebbe decidere di ritirare la protezione del regolamento su categorie di accordi verticali e pratiche concordate in casi particolari, se giustificato dalla situazione di mercato”
(41–43 del Report finale sull’inchiesta di settore sull’e-commerce).
- Per dettagli sulla distribuzione online e il diritto antitrust, si prega di consultare il mio ultimo articolo “Internetvertrieb in der EU 2018 ff. – Online-Vertriebsvorgaben von Asics über BMW bis Coty”, in: Zeitschrift für Vertriebsrecht 2017, pp. 274-281.
Perciò, sulla base della più recente posizione della Commissione Europea, vi è spazio per argomenti e per la redazione creativa di contratti, posto che anche divieti generali di mercato possono essere compatibili con le norme UE sulla concorrenza. Comunque, le corti potrebbero considerare la questione in modo differente nel singolo caso. Conseguentemente, soprattutto la Corte di Giustizia UE con il suo caso Coty (vedi sopra) porterà maggiore chiarezza per la futura distribuzione online. Sul caso Coty, la Corte di Giustizia UE deciderà il 6 dicembre 2017 (vedi il calendario giudiziario della Corte) : rimanete aggiornati sugli sviluppi seguendo il nostro blog.
Understanding the interplay between federal and state statutory and common law in the US legal system is important to understanding the regulation of exclusive distribution agreements in the US.
Under the US Constitution all power not specifically reserved for the federal government remains with the states. Federal law has exclusive jurisdiction only over certain types of cases (e.g., those involving federal laws, controversies between states and cases involving foreign governments), and share jurisdiction with the states courts in certain other areas (e.g., cases involving parties that reside in different states). In the vast majority of cases, however, state law has exclusive jurisdiction. Similarly, the doctrine of freedom of contract under US law also directly affects how distribution agreements are regulated in the US.
Furthermore, because a distributor is typically an unaffiliated third party acting on its own account rather than on behalf of the supplier as principal, distribution agreements are subject to greater regulation under US federal and state antitrust law. Such law, among other things, (i) regulates whether and the degree to which a supplier in a distribution arrangement may seek in a contract or otherwise to dictate the price at which the distributor will resell products supplied; (ii) imposes restrictions on suppliers that engage in “dual distribution” (selling product directly as well as through a distributor); and (iii) may limit the suppliers’ ability to sell product to different distributors at a different price. Antitrust law also regulates exclusivity and selective distribution arrangements, as well as distribution relationships in certain industries (e.g., federally: automobile manufacturers and petroleum; at the state level, heavy equipment, liquor and farm equipment industries). Furthermore, distribution agreements often may resemble franchise arrangements, subjecting those arrangements to extensive federal and state regulation.
Under the law of most states (including New York), exclusive distribution exists when a supplier grants a distributor exclusive rights to promote and sell the contract goods or services within a territory or to a specific group of customers. Exclusive rights in a distribution arrangement are often granted by the supplier for the distribution of high quality or technically complex products that require a relatively high level of expertise by the distributor, including staff that is specially training to sell the goods or specialized after-sales repair and maintenance or other services. Distribution agreements differ from commercial agency agreements in several respects. In contrast to a distributor, a commercial agent does not take title to product, does not hold inventory and typically has no contractual liability to the customer (including risk of customer non-payment). Conversely, a distributor, in line with the greater risk of its activities, typically can expect greater upside economically in terms of margins on resale relative to an agent’s profit through earned commissions.
Sub-distributors
Under the law of most states (including New York), a distributor may appoint sub-distributors absent any restrictions to the contrary in the agency agreement. Commercially, the appointment of a sub-distributor may have an adverse effect on the supplier by reducing the supplier’s control over its distribution channel activities or increasing the supplier’s potential liability exposure given the increased number of distributors whose actions may be attributed to the supplier. A supplier that does not manage properly the appointment of sub-distributors may also lose valuable product knowledge with respect to the distributed goods (particularly if the goods are novel or complex in nature). Advantages to sub-distributor appointments for the supplier may include a more effective overall marketing presence with enhanced local market knowledge, a broader geographic scope, a potentially lower costs as a result of the sub-distributors’ expertise and efficiencies, etc.
————————————-
Need help with your International Distribution Contracts?
Click the button below to Receive Support from our Expert Lawyers thanks to the Online Help Desk
————————————-
Rights and Obligations of the Exclusive Distributor
- Sales organization: suppliers are not required to establish sales organizations in exclusive distribution agreements.
- Sales’ target: there are no mandatory rules under federal law or state law (including New York) generally regarding sales targets in exclusive distribution agreements. However, such provisions are common in exclusive distribution agreements.
- Guaranteed minimum target: minimum sales requirements are common in exclusive distribution agreements. As a commercial matter, a supplier as a requirement to give, or maintain, exclusivity with one distributor, will seek through such requirements to ensure that economically the distributor is performing satisfactorily. Often failure to meet sales targets may entitle a supplier to rescind the exclusivity, terminate the agreement or reduce the portion of the territory to which the exclusivity applies. We note that minimum sales requirements in an exclusive distribution arrangement may, in certain cases, be subject to challenge under antitrust law as having an undue anticompetitive effect by preventing a distributor from purchasing products from a competitive supplier.
- Minimum stock: there are no mandatory rules in federal law or the law of the majority of states (including New York) regarding minimum stock. A supplier may seek to have the distributor agree, contractually, to maintain adequate levels of stock relative to market demands as well as to store the product properly.
- After-sales service: the parties to a distribution agreement are generally free to agree as they deem appropriate with respect to after-sale service regarding products.
- Resale Prices: the Exclusive Distributor is free to fix the resale prices. State law (including New York law) generally does not limit the ability of an exclusive distributor to fix resale prices. […] A supplier’s ability to set resale prices for distributors is subject to limitations under federal and state antitrust law. Many state antitrust laws (including New York’s) closely resemble the federal antitrust laws. However, differences exist such that certain conduct may be found not to violate federal antitrust law but still be found to violate state antitrust law (or vice versa). Because the distributor (contrary to an agent) is acting on its own behalf, an agreement between supplier and distributor to maintain certain prices (or if a distributor is deemed to have been coerced by the supplier to follow certain prices), may be a per se price-fixing violation under federal and state antitrust law. Under federal antitrust law, vertical price-fixing until 2007 had been illegal per se. This per se rule was overturned by the Supreme Court. Horizontal price fixing remains per se illegal under the Sherman Act (see below).
Rights and Obligations of the Supplier
- Exclusive Distributor undertaking to supply: generally, state statutes do not specifically provide that a supplier in a distribution relationship has a duty to supply specific levels of product to a distributor, with such obligations generally be established by contractual provision. However, a supplier does have an implied covenant of good faith and fair dealing toward the distributor under state law generally, which generally requires that a party to a commercial agreement not do anything which injures the right of the other to receive the benefits of the agreement). Under the foregoing, a supplier may be deemed to have an obligation to supply product to a distributor (or be found to have violated the implied covenant of good faith and fair dealing in the event that the supplier, although able, decided not to provide a distributor with product without any other contractual justification for not doing so). However, even where such a duty were found to exist, the quantity and frequency of product supply and other details often remain unclear. To avoid uncertainty, distributors often seek to have a specific provision included in the distribution agreement, providing at least for the supplier to be required to use some degree of effort (e.g., “best efforts,”, “reasonable best efforts” or “reasonable efforts”) to supply product responsive to distributor’s submitted purchase orders. On a related topic, generally a distributor typically is only required to inform the supplier of lower purchase estimates if the distributor undertakes to do so (or undertakes a more general obligation with respect to the market) in the distribution agreement. However, even if the supplier is not, under an exclusive distribution agreement, required to supply the distributor with product, the supplier may still be subject to a contractual or common law obligation not to sell to third parties in the territory. New York courts held that suppliers that make direct sales to customers in the territory under an exclusive distribution agreement have breached their duties to the exclusive distributor.
- Retention of title: typically, in sales transactions on credit in the US, title is passed at the moment of initial sale. The buyer typically grants the supplier a security interest in the goods purchased, which if proper perfected under state law, affords the supplier with a priority position relative to other creditors with respect to the products provided (inventory) in the event of non-payment and enforcement.
Construction defects warranty
The law of “products liability” in the US is based on the law of torts. Under New York law, in cases of where an end user is injured by a defective product which was sold by the distributor under a distribution agreement, the end user generally is able to sue the distributor and the supplier of the product under one or more of the following theories: (i) strict liability; (ii) negligence; or (iii) breach of warranty. The usual theory of recovery against a distributor is strict liability. Under a strict liability theory, a supplier or distributor that sells a defective product while engaged in its normal course of business shall be liable for injuries it causes to customers, regardless of privity, foreseeability or the exercise of due care. Product liability cases also are brought under breach of warranty claims. Breach of warranty claims can be based on express warranties (e.g., from advertisement or a product label) and on implied warranties (typically, warranties of merchantability and fitness for a particular purpose under the provisions of the Uniform Commercial Code as adopted by the states). Lastly, negligence claims brought by plaintiffs are based on the improper conduct of the defendant, whether supplier or distributor or other participant in the distribution chain, with respect to the manner of distribution or care of the product sold (examples include improper storage or transport).
Under New York law, exceptions based on misuse, neglect or abuse by the suing party generally apply as defenses against liability under theories of strict liability, negligence or breach of warranty.
The supplier and distributor can allocate third-party liabilities (e.g., potential losses to be paid to plaintiffs in a products liability law suit) and related attorneys fees as between themselves through warranty and other indemnification provisions. Parties to a distribution agreement in the US often seek to put in place such re-allocation provisions not only because of potential liability resulting from a final, unfavorable judgment, but also because of the sizeable legal fees that litigants in the US often incur. In this regard, we note that in the US litigation costs are generally born by all of the litigating parties and not by the losing party as is common in many other countries. Such provisions may include indemnification provisions relating to product liability or trademark infringement claims brought by third parties, limitations on liability provisions (based on monetary caps and exclusions as to the types of damages that may be recovered, such as consequential, punitive, special and indirect damages) and disclaimers in respect of express or implied warranties that may otherwise apply under state law applicable to the distribution agreement.
Exclusivity
Exclusive-dealing provisions – under which the distributor undertakes not to distribute competing products in the territory – are quite common in distribution agreements. However, although it is not easy for a plaintiff to prevail, such a provision may be subject to challenge as an unlawful restriction on competition under federal and state antitrust law, typically under the following federal antitrust laws: (i) section 1 of the Sherman Act, which prohibits contracts “in restraint of trade;”; (ii) section 2 of the Sherman Act, which prohibits “attempt[s] to monopolize” and monopolization; (iii) section 3 of the Clayton Antitrust Act of 1914 […], which prohibits exclusivity arrangements that may “substantially lessen competition” or tend to create a monopoly; and, finally, (iv) section 5 of the Federal Trade Commission Act […], which prohibits “[u]nfair methods of competition.” In deciding these cases, typically courts apply the “rule of reason analysis” under which the exclusive dealing arrangements is analyzed considering a host of factors, including: (a) the defendant’s market power; (b) the degree of foreclosure from the market and barriers to entry; (c) the duration of the contracts; (d) whether exclusivity has the potential to raise competitors’ costs; (e) the presence of actual or likely anticompetitive effects; and (f) legitimate business justifications.
Distribuzione online – Nullo il divieto di strumenti di comparazione dei prezzi?
- Antitrust
- Distribuzione
-
Germania
USA 
Scrivi a Javier
EU geoblocking ban – New strategy for e-commerce websites
14 Giugno 2018
-
Europa -
Francia
- Antitrust
- Distribuzione
- eCommerce
The Commercial Court No. 17 of Madrid has ruled in the SuperLiga case following the guidelines set by the CJEU in its decision of December 21 last year.
The lawsuit was filed by ESCL, an entity formed by Real Madrid and other soccer clubs to promote the SuperLiga, most of which abandoned the project due to pressure from fans and their governments against FIFA and UEFA, with RFEF and La Liga voluntarily joining the defendants.
As usually happens with elections, but not with sentences, everyone, plaintiffs and defendants, has shown their satisfaction with this ruling, which is not yet final, as it can be appealed before the Provincial Court of Madrid.
In brief, the proceedings involved whether the FIFA/UEFA regulations on the organization and authorization of soccer competitions and the management of the rights deriving from such competitions were in accordance with Community competition law, articles 101 and 102 of the TFEU.
The CJEU judgment of last December had already ruled that the regulatory rules of FIFA and UEFA relating to prior authorization and participation, which give these entities the power to prevent any competing company from accessing the market, constitute an abuse of a dominant position and infringe the provisions of Articles 101 and 102 TFEU, mainly because they are not accompanied by certain limits and controls guaranteeing transparency and objectivity in the decision not to authorize such international competitions, which allow the risk of abuse of a dominant position to be excluded.
Likewise, the Court of Justice, using the same arguments and about the exploitation rights deriving from sporting competitions, states that the FIFA and UEFA rules are contrary to the provisions of Articles 101 and 102 TFEU, since they attribute to themselves exclusive responsibility for the marketing of the rights in question.
Following the guidelines set by the CJEU judgment, the judgment of Madrid Commercial Court No. 17 partially upheld the lawsuit filed by ESLC against UEFA and FIFA. It declared that both organizations have abused their dominant position and are preventing free competition in the market by granting themselves the discretionary power to prohibit participation in alternative competitions and impose unjustified and disproportionate restrictions, conduct that infringes Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU).
The ruling condemns FIFA and UEFA to cease the anticompetitive conduct sanctioned and prohibits them from repeating them in the future. It also condemns them to immediately remove all the effects of the anticompetitive actions that occurred before or during the duration of the lawsuit, which began on April 18, 2021, when ESLC announced the launch of the SupeLiga.
Finally, the judgment states that the content of the declarations issued by FIFA, UEFA and other entities (including the federations and leagues of England, Italy and Spain, some of whose clubs were part of the project) on April 18, 2021 (referred to in the lawsuit as the ‘Declaration’) in relation to the pan-European international competition project, also infringes Articles 101 and 102 TFEU.
It should be noted that the judgment expressly states that “inasmuch as the SuperLiga in the terms initially set forth in the lawsuit, i.e. in accordance with the initial project has been abandoned and discarded by the promoters themselves, the motions in relation thereto must likewise lapse; it is not possible to impose a prohibition or restriction in the abstract, i.e. to impose a prohibition in the future of any other project or modification of the one already presented”.
Based on this argument, the Judgment rejects the requests included in section f) of the lawsuit which, in summary, requested that FIFA and UEFA be ordered to refrain from any conduct, measure, or action or issue any statement that prevents or hinders in any way the preparation of the SuperLiga; and the commercial judge concludes by stating in this regard that the purpose of these proceedings is not “the authorization of any competition, but to lay the foundations to channel a system of free competition for the organization of soccer competitions”.
Thereafter, everyone is happy with the result; La Liga issued a statement stressing that the ruling does not endorse a project which, moreover, according to the same ruling, has been abandoned by its promoters. UEFA says that it is pleased to note that the judge has given a good and valid system of prior authorization for third-party competitions to be approved in accordance with UEFA’s authorization rules and has recognized the undoubted benefits of these rules for the soccer sporting system, concluding that “the judgment does not give third parties the right to develop competitions without authorization and does not refer to any future project or to any modified version of an existing project”.
The plaintiffs, too, are happy and content to proclaim that UEFA’s statutes and the aggressive measures taken to protect its monopoly have stifled innovation for decades. Clubs should not have to fear threats of sanctions simply for having ideas and having conversations. The era of monopoly is definitely over.
Rarely does one find that a judgment leaves all the litigants so happy and content, but that seems to be the case here. Or at least that is what all of them have been interested in communicating, when the harsh reality is, on the one hand, that the SuperLiga project as it was structured when the lawsuit started and FIFA/UEFA reacted furiously, is dead and buried, and on the other hand, that the happy world in which FIFA and UEFA regulated soccer and competitions as a private preserve, considered themselves immune and alien to ordinary justice and shared the money generated without being accountable to the Courts of Justice and threatened to expel or expel the rebellious spirits, has come to an end.
Geoblocking is a discriminatory practice preventing customers (mainly on-line customers) from accessing and/or purchasing products or services from a website located in another member State, because of the nationality of the customer or his place of residence or establishment.
The EU Regulation no. 2018/302 of 28 February 2018 on addressing unjustified geoblocking and other forms of discrimination based on customers’ nationality, place of residence or place of establishment within the internal market will enter into force on 2 December 2018.
The current situation
The EU Commission carried out a “mystery shopping” survey on over 10 000 e-commerce websites in the EU. The geoblocking figures are quite high! 63% of the websites do not let shoppers to buy from another EU country (even 86% for electric household appliances and 79% for electronics and computer hardware).
The survey shows also that 92% of on-line retailers require customers to register on their website and to provide them with e-mail address, physical address and telephone number. The registration is denied most of the time because of a foreign delivery address for 27% of the websites. Almost half of the websites give no information about the place of delivery while shopping on the website although this information on delivery restrictions has to be provided in due time during the shopping process. At the end, according to this EC survey, only 37% of the websites truly allow e-shoppers to freely buy on-line from another EU country (without restriction as regards place of establishment, place of delivery and mean of payment).
On the other side, only 50% of European customers buy products from on-line shops based in another EU member State while the value and the volume of e-commerce, globally speaking increase thoroughly year after year, but only on a domestic scope not throughout Europe.
On 23 June 2017, the European Council asked for a real implementation of the Digital Single Market strategy in all its elements including cross border partial delivery, consumer protection and prohibition of undue geoblocking.
The lack of the current legal frameworks
The service directive (n°2006/123/CE) and article 101 of the TFUE address already the discrimination practices based on nationality or place or residence or establishment.
According to article 20 (2) of the service directive, the EU member States must ensure that professionals do not treat customers differently based on their place of residence or establishment or nationality (unless objective exception). On the other side, EU competition law on vertical restraints (article 101 TFUE and the block exemption regulation and its guidelines) considers restrictions on passive sales as hard core restrictions violating EU competition rules. However, both set of rules (service directive and competition law framework) appear not to be fully effective in practice.
With this respect, the recent report of the European commission about the competition enquiry in the e-commerce sector shows, among others, that geoblocking was used at a large scale within the European e-commerce sector.
The aim of the geoblocking regulation
The goal of the geoblocking regulation is to prevent professionals from implementing direct or indirect discrimination based on the nationality, the place of residence or the place of establishment of their customers when dealing with cross border e-commerce transactions.
The scope of the geoblocking regulations
The new Regulation will only apply to online sales between businesses and end-user consumers or businesses.
The new Regulation will apply to websites operated within the European Union or to websites operated outside the European Union but proposing goods or services to customers established throughout in the European Union.
What are the new rules of management of an e-commerce website?
As regards the access to the website
Under the Regulation, a business may neither block nor restrict, through the use of technological measures, access to their online interfaces for reasons related to nationality, place of residence or place of establishment of an internet user. However, businesses are authorized to redirect customers to a different website than the one they were trying to access provided the customer expressly agrees thereto and can still easily visit the website version they originally tried to access.
As regards the terms and conditions of sales of the website
The Regulation forbids businesses from applying different general conditions of access to goods or services according to a customer’s nationality or place of residence or place of establishment (as identified by their IP address in particular) in the following three cases:
- where the goods sold by the business are delivered in a different member state to which the business offers delivery (or where the goods are collected at a location jointly agreed upon by the business and the customer);
- where the business offers electronically supplied services such as cloud, data storage, hosting services etc. (but not services offering access to copyright-protected content such as streaming or online-gaming services);
- where the business supplies services received by the customer in a country in which the business also operates (such as car rental and hotel accommodation services or ticketing services for sporting or cultural events).
As regards the means of payment on the website
The Regulation forbids businesses from applying different conditions for payment transactions to accepted means of payment for reasons related to a customer’s nationality, place of residence or place of establishment, or to the location of the payment account or the place of establishment of the payment service provider (provided that authentication requirements are fulfilled and that payment transactions are made in a currency accepted by the business).
What are the impacts of this regulation on e-retailers?
Although formally excluded from the scope of the Regulation, relations between suppliers and distributors or wholesalers will still be impacted by it since provisions of agreements between businesses under which distributors undertake not to make passive sales (e.g., by blocking or restricting access to a website) for reasons related to a customer’s nationality, place of residence or place of establishment “shall be automatically void”.
The geoblocking regulation therefore impacts distributors twofold: first, directly in their relations with customers (end-user consumers or user-businesses), and second, indirectly in regard to their obligations under the exclusive distribution agreement.
The geoblocking regulation shall have to be coordinated with the existing competition law framework, especially the guidelines on vertical restraints which set up specific rules applying to on-line sales. On-line sales are likened to passive sales. The guidelines mention four examples of practices aiming to indirectly guarantee territorial protection which are prohibited when supplier and exclusive distributor agree:
- that the exclusive distributor shall prevent customers in another territory from visiting their website or shall automatically refer them to the supplier’s or other distributors’ websites,
- that the exclusive distributor shall terminate an online sale if the purchaser’s credit card data show that the purchaser is not from the exclusive distributor’s exclusive territory,
- to limit the share of sales made by the exclusive distributor through the internet (but the contract may provide for minimum offline targets in absolute terms and for online sales to remain coherent compared to offline sales).
- that the exclusive distributor shall pay a higher price for goods intended for sale on the internet than for goods intended for sale offline.
Manufacturers will have to decide whether they adopt a unique European gateway website or multiple local commercial offers, it being known that price differentiation is still possible per category of clients.
Indeed, the new Regulation does not oblige the e-retailers to harmonize their price policies, they must only allow EU consumers to access freely and easily to any version of their website. Likewise, this Regulation does not oblige e-retailers to ship products all over Europe, but just allow EU consumers to purchase goods from whichever website they want and to arrange the shipment themselves, if need be.
Finally on a more contractual level, it is not very clear yet how the new geoblocking rules could impact directly or indirectly the conflict of law rules applicable to consumer contracts, as per the Rome I regulation especially when the consumer will be allowed to handover the product purchased on a foreign website in the country of this website (which imply no specific delivery in the country where the consumer is established).
Therefore B2C general terms and conditions of websites would need to be reviewed and adapted on both marketing and legal sides.
The Court of Justice of the European Union (CJEU) ruled, on December 20, 2017, that the service provided by Uber cannot be regarded as a digital service.
The question raised
The request for preliminary ruling was referred by a decision made by the Juzgado de lo mercantil de Barcelona relating to a dispute between the Asociacion Profesional Elite Taxi and Uber where the first considers that the second offers a paid service consisting of connecting non-professional drivers with persons who wish to make urban journeys, without holding any local administrative license nor authorization.
The question at stake was clearly set by the Court. The starting point is the principle of freedom of services (article 56 TFUE) and its implementation by two directives: the 2000/31 Directive on e-commerce and the 2006/123 Directive on services in the internal market. On the other side, in each of these three set of rules (TFUE, 2000 and 2006 Directives), an exception is made for “transport services”. The question at stake was to know whether the service offered by Uber could be qualified as a digital service (subject only to the national law of establishment of the service provider) or as a transport service (which must comply with the 28 national laws on transport).
The decision of the Court
The Court first stated (i) that “an intermediation service consisting of connecting a non-professional driver using his own vehicle with a person wishes to make an urban journey is, in principle, a separate service from a transport service“, and (ii) that a transport service is defined as “the physical act of moving persons or goods from one place to another by means of a vehicle“. With this fine line between the two types of services, the Court then concluded that the hereabove intermediation service “meets, in principle, the criteria for classification as an “information society service” within the meaning of the Directive 2000/31“.
The CJEU ruled however that the very activity conducted by Uber is “more than an intermediation service consisting of connecting, by means of a smart phone application, a non-professional driver using his or her own vehicle with a person who wishes to make an urban journey“. The Court then explained that Uber “simultaneously offers urban transport services, which it renders accessible, in particular, through software tools such as the application (…) and whose general operation it organizes for the benefit of persons who wish to accept that offer in order to make an urban journey“.
The Court grounded its reasoning with the two following features to qualify Uber’s service as a transport service:
- This intermediation service is “based on the selection of non-professional drivers using their own vehicle, to whom the company provides an application without which (i) those drivers would not be led to provide transport services and (ii) persons who wish to make an urban journey would not use the service provided by those drivers“.
- “Uber exercises decisive influence over the conditions under which that service is provided by those drivers” (e.g. the maximum fare fixed by Uber, the amount cashed in first by Uber and then repaid to the drivers, the quality control of the vehicles and of the drivers by Uber with possible exclusion as a sanction).
The impact for startup using intermediation platforms
Although the Court mentions that the service of Uber is “more” than an intermediation service, and that the provider of this intermediation service “simultaneously offer” urban transport services, which imply that this intermediation service does however exist, the Court judged that specific features should invalidate this intermediation service as a digital service. A more up-to-date approach of what is today the Digital Single Market could have led the Court to choose another solution and stay on the digital side.
The reasoning of the Court does not really constitute a guideline for other intermediation platforms. The shortness of the reasoning might convey a more political decision applying to a US giant like Uber. The briefness of the reasoning may also show the inadequacy of the current EU regulation vis-à-vis the new trends of digital economy, specially the large variety of intermediation platforms business models (the « digital service » to which the Court referred has been defined in the 1998 directive).
It seems that this ruling will not materially impact Uber which is already subject to local transport rules in several EU countries.
This ruling will impact European Uber-like businesses as they will have to take into consideration this decision to build their offer: they will deal with 28 local regulations if they cannot qualify as a digital service. But should they fall into the transport service rules, intermediation platforms will have anyway to control whether national political and judicial authorities implement local transport rules in compliance with the general principles of the TFUE.
As regards service providers dealing with non-transport services, it is difficult to anticipate the real impact of this decision since this ruling is highly focused on the relation between liberalization of services and specific rules applicable to transport.
The author of this post is Christophe Héry.
I produttori di articoli di marca tipicamente puntano ad assicurare lo stesso livello di qualità lungo tutti i canali di distribuzione. Al fine di conseguire tale scopo, essi stabiliscono criteri su come rivendere i propri prodotti. Con l’aumento delle vendite via internet, l’utilizzo di tali criteri è aumentato altrettanto.
Il miglior esempio: Asics. Fino al 2010, la controllata tedesca Asics Deutschland GmbH riforniva i propri distributori in Germania senza applicare criteri particolari. Nel 2011, Asics ha lanciato un sistema di distribuzione selettivo chiamato “Distribution System 1.0“. Esso prevede, tra le altre cose, un divieto generale, per i distributori, di usare strumenti di comparazione dei prezzi nelle vendite online:
“In aggiunta, il distributore autorizzato … non è da ritenersi autorizzato … a supportare la funzionalità di comparazione dei prezzi apportando l’interfaccia specifica d’applicazione (“API”) per tali strumenti di comparazione dei prezzi.” [tradotto]
L’Ufficio federale dei cartelli tedesco (“Bundeskartellamt”) ha stabilito, con decisione del 26 agosto 2015, che il divieto di utilizzare strumenti di comparazione dei prezzi nei confronti di distributori presenti in Germania era nullo in quanto viola l’articolo 101 (1) TFUE e l’art. 1 della Legge contro le limitazioni della concorrenza (cfr. il testo della decisione, di 196 pagine, qui). Il motivo addotto è che tale divieto punterebbe principalmente a controllare e limitare la competizione dei prezzi a spese del consumatore. Asics, per contro, ha presentato ricorso dinnanzi all’Alta Corte Regionale di Düsseldorf, al fine di vedere annullata la decisione dell’Ufficio federale dei cartelli, sostenendo che tale divieto era uno standard di qualità proporzionato nell’ambito del suo “Distribution System 1.0“, mirante a una presentazione uniforme dei prodotti.
Il 5 aprile 2017, l’Alta Corte Regionale di Düsseldorf ha confermato, così come la decisione dell’Ufficio federale dei cartelli, che nell’ambito di sistemi di distribuzione selettiva il divieto generale di usare strumenti comparazione dei prezzi era anticoncorrenziale e con ciò nullo (fasc. n. VI-Kart 13/15 (V); vedi altresì la rassegna stampa dell’Ufficio federale dei cartelli in inglese):
- In particolare, il divieto di strumentazione di comparazione dei prezzi non era dispensato, nell’ambito di una interpretazione teleologica (“Tatbestandsreduktion”), dall’art. 101 co. 1 TFEU. Secondo la Corte, ciò non era necessario al fine di proteggere la qualità e l’immagine di prodotto del brand Asics (ossia la stessa argomentazione dell’Alta Corte regionale di Francoforte nella sua sentenza del 22.12.2015, fasc. n. 11 U 84/14 riguardante gli zaini di Deuter; la Corte suprema federale non dovrà più decidere su tale caso perché la revisione è stata ritirata in marzo 2017, fasc. n. KZR 3/16). La Corte ha dichiarato che il divieto era volto a limitare i compratori, argomentando che i distributori sarebbero stati limitati nell’entrare in una competizione sui prezzi con altri. La presentazione di prodotti all’interno degli strumenti di comparazione dei prezzi non avrebbe danneggiato la qualità o il brand di prodotti Asics. Non avrebbe nemmeno dato “l’impressione di un mercato delle pulci”, nemmeno attraverso la presentazione, in parallelo, di prodotti usati. Inoltre, il divieto di strumenti di comparazione dei prezzi non risolverebbe comunque il problema del “free-riding”. In ogni caso, il divieto generale posto all’utilizzo di strumenti di comparazione dei prezzi non era necessario e perciò illegittimo.
- Il divieto, inoltre, non doveva ritenersi esentato dal regolamento sulle categorie di accordi verticali e pratiche concordate. Al contrario, la Corte ha rilevato che il divieto avrebbe limitato vendite passive (svolte cioè attraverso internet) verso consumatori finali, contrariamente all’art. 4 (c) del regolamento sulle categorie di accordi verticali e pratiche concordate (facendo riferimento alla decisione della Corte di Giustizia dell’UE nel caso di Pierre Fabre, 13 ottobre 2011, fasc. n. C-439/09). Il “principio di equivalenza” (secondo cui le restrizioni valide per le vendite offline così come online non dovrebbero essere identiche, ma funzionalmente equivalenti) non si applicherebbe, in quanto nel commercio tradizionale non ci sarebbero funzioni comparabili agli strumenti di comparazione dei prezzi.
- Infine, il divieto non beneficerebbe nemmeno dell’esenzione individuale di cui all’art. 101 co. 3 TFUE (“difesa dell’efficienza”).
Conclusioni
Secondo l’Alta Corte regionale di Düsseldorf, i produttori non potrebbero proibire generalmente ai loro distributori di usare strumenti di comparazione dei prezzi. Allo stesso tempo, la corte ha rifiutato di concedere l’autorizzazione a un appello contro la propria decisione – che, comunque, può essere richiesto separatamente, tramite la via dell’impugnazione (cfr. artt. 74, 75 della Legge contro le restrizioni in materia di concorrenza). Il futuro sviluppo di criteri limitanti i distributori nella rivendita online resta aperto, in particolare in quanto (i) il caso Coty è attualmente pendente presso la Corte di Giustizia dell’UE (vedi sotto) e (ii) la Commissione UE nella sua inchiesta di settore sull’e-commerce apparentemente sembra favorire i produttori di articoli di marca (vedi sotto).
- La Corte ha lasciato esplicitamente aperte – adducendo che non fossero rilevanti per la sua decisione – la questioni se:
- il divieto di motori di ricerca sia anti competitivo (paragrafo 44 e ss. della decisione);
- il divieto generale di usare piattaforme di terze parti sia anti competitivo (paragrafo 7) – sebbene il “Distribution System 1.0” di Asics vietasse anche piattaforme come Amazon e eBay.
- Se e come produttori di prodotti di lusso o di marca possono continuare a vietare la loro distribuzione via Amazon, eBay e altri mercati in generale verrà probabilmente deciso dalla Corte di Giustizia UE nei prossimi mesi – nel caso Coty (vedi il nostro post “eCommerce: restrizioni su distributori in Germania”) per il quale un’udienza ha già avuto luogo alla fine di marzo 2017.
- Senza pregiudizio per il caso Coty, la Commissione UE, nella propria inchiesta di settore sull’e-commerce del maggio 2017, dichiarato che
- “divieti di marketplaces in generale non producono una proibizione di fatto della vendita online, non restringono l’uso effettivo di internet come canale di vendita indipendentemente dai mercati colpiti dal divieto…”;
- “la potenziale giustificazione ed efficienze riportate dai produttori differiscono da un prodotto all’altro …”;
- “(assoluti) divieti di marketplaces non dovrebbero essere considerati quali restrizioni fondamentali nel significato dell’articolo 4(b) e articolo 4(c) del regolamento su categorie di accordi verticali e pratiche concordate …”;
- “la Commissione o una autorità nazionale della concorrenza potrebbe decidere di ritirare la protezione del regolamento su categorie di accordi verticali e pratiche concordate in casi particolari, se giustificato dalla situazione di mercato”
(41–43 del Report finale sull’inchiesta di settore sull’e-commerce).
- Per dettagli sulla distribuzione online e il diritto antitrust, si prega di consultare il mio ultimo articolo “Internetvertrieb in der EU 2018 ff. – Online-Vertriebsvorgaben von Asics über BMW bis Coty”, in: Zeitschrift für Vertriebsrecht 2017, pp. 274-281.
Perciò, sulla base della più recente posizione della Commissione Europea, vi è spazio per argomenti e per la redazione creativa di contratti, posto che anche divieti generali di mercato possono essere compatibili con le norme UE sulla concorrenza. Comunque, le corti potrebbero considerare la questione in modo differente nel singolo caso. Conseguentemente, soprattutto la Corte di Giustizia UE con il suo caso Coty (vedi sopra) porterà maggiore chiarezza per la futura distribuzione online. Sul caso Coty, la Corte di Giustizia UE deciderà il 6 dicembre 2017 (vedi il calendario giudiziario della Corte) : rimanete aggiornati sugli sviluppi seguendo il nostro blog.
Understanding the interplay between federal and state statutory and common law in the US legal system is important to understanding the regulation of exclusive distribution agreements in the US.
Under the US Constitution all power not specifically reserved for the federal government remains with the states. Federal law has exclusive jurisdiction only over certain types of cases (e.g., those involving federal laws, controversies between states and cases involving foreign governments), and share jurisdiction with the states courts in certain other areas (e.g., cases involving parties that reside in different states). In the vast majority of cases, however, state law has exclusive jurisdiction. Similarly, the doctrine of freedom of contract under US law also directly affects how distribution agreements are regulated in the US.
Furthermore, because a distributor is typically an unaffiliated third party acting on its own account rather than on behalf of the supplier as principal, distribution agreements are subject to greater regulation under US federal and state antitrust law. Such law, among other things, (i) regulates whether and the degree to which a supplier in a distribution arrangement may seek in a contract or otherwise to dictate the price at which the distributor will resell products supplied; (ii) imposes restrictions on suppliers that engage in “dual distribution” (selling product directly as well as through a distributor); and (iii) may limit the suppliers’ ability to sell product to different distributors at a different price. Antitrust law also regulates exclusivity and selective distribution arrangements, as well as distribution relationships in certain industries (e.g., federally: automobile manufacturers and petroleum; at the state level, heavy equipment, liquor and farm equipment industries). Furthermore, distribution agreements often may resemble franchise arrangements, subjecting those arrangements to extensive federal and state regulation.
Under the law of most states (including New York), exclusive distribution exists when a supplier grants a distributor exclusive rights to promote and sell the contract goods or services within a territory or to a specific group of customers. Exclusive rights in a distribution arrangement are often granted by the supplier for the distribution of high quality or technically complex products that require a relatively high level of expertise by the distributor, including staff that is specially training to sell the goods or specialized after-sales repair and maintenance or other services. Distribution agreements differ from commercial agency agreements in several respects. In contrast to a distributor, a commercial agent does not take title to product, does not hold inventory and typically has no contractual liability to the customer (including risk of customer non-payment). Conversely, a distributor, in line with the greater risk of its activities, typically can expect greater upside economically in terms of margins on resale relative to an agent’s profit through earned commissions.
Sub-distributors
Under the law of most states (including New York), a distributor may appoint sub-distributors absent any restrictions to the contrary in the agency agreement. Commercially, the appointment of a sub-distributor may have an adverse effect on the supplier by reducing the supplier’s control over its distribution channel activities or increasing the supplier’s potential liability exposure given the increased number of distributors whose actions may be attributed to the supplier. A supplier that does not manage properly the appointment of sub-distributors may also lose valuable product knowledge with respect to the distributed goods (particularly if the goods are novel or complex in nature). Advantages to sub-distributor appointments for the supplier may include a more effective overall marketing presence with enhanced local market knowledge, a broader geographic scope, a potentially lower costs as a result of the sub-distributors’ expertise and efficiencies, etc.
————————————-
Need help with your International Distribution Contracts?
Click the button below to Receive Support from our Expert Lawyers thanks to the Online Help Desk
————————————-
Rights and Obligations of the Exclusive Distributor
- Sales organization: suppliers are not required to establish sales organizations in exclusive distribution agreements.
- Sales’ target: there are no mandatory rules under federal law or state law (including New York) generally regarding sales targets in exclusive distribution agreements. However, such provisions are common in exclusive distribution agreements.
- Guaranteed minimum target: minimum sales requirements are common in exclusive distribution agreements. As a commercial matter, a supplier as a requirement to give, or maintain, exclusivity with one distributor, will seek through such requirements to ensure that economically the distributor is performing satisfactorily. Often failure to meet sales targets may entitle a supplier to rescind the exclusivity, terminate the agreement or reduce the portion of the territory to which the exclusivity applies. We note that minimum sales requirements in an exclusive distribution arrangement may, in certain cases, be subject to challenge under antitrust law as having an undue anticompetitive effect by preventing a distributor from purchasing products from a competitive supplier.
- Minimum stock: there are no mandatory rules in federal law or the law of the majority of states (including New York) regarding minimum stock. A supplier may seek to have the distributor agree, contractually, to maintain adequate levels of stock relative to market demands as well as to store the product properly.
- After-sales service: the parties to a distribution agreement are generally free to agree as they deem appropriate with respect to after-sale service regarding products.
- Resale Prices: the Exclusive Distributor is free to fix the resale prices. State law (including New York law) generally does not limit the ability of an exclusive distributor to fix resale prices. […] A supplier’s ability to set resale prices for distributors is subject to limitations under federal and state antitrust law. Many state antitrust laws (including New York’s) closely resemble the federal antitrust laws. However, differences exist such that certain conduct may be found not to violate federal antitrust law but still be found to violate state antitrust law (or vice versa). Because the distributor (contrary to an agent) is acting on its own behalf, an agreement between supplier and distributor to maintain certain prices (or if a distributor is deemed to have been coerced by the supplier to follow certain prices), may be a per se price-fixing violation under federal and state antitrust law. Under federal antitrust law, vertical price-fixing until 2007 had been illegal per se. This per se rule was overturned by the Supreme Court. Horizontal price fixing remains per se illegal under the Sherman Act (see below).
Rights and Obligations of the Supplier
- Exclusive Distributor undertaking to supply: generally, state statutes do not specifically provide that a supplier in a distribution relationship has a duty to supply specific levels of product to a distributor, with such obligations generally be established by contractual provision. However, a supplier does have an implied covenant of good faith and fair dealing toward the distributor under state law generally, which generally requires that a party to a commercial agreement not do anything which injures the right of the other to receive the benefits of the agreement). Under the foregoing, a supplier may be deemed to have an obligation to supply product to a distributor (or be found to have violated the implied covenant of good faith and fair dealing in the event that the supplier, although able, decided not to provide a distributor with product without any other contractual justification for not doing so). However, even where such a duty were found to exist, the quantity and frequency of product supply and other details often remain unclear. To avoid uncertainty, distributors often seek to have a specific provision included in the distribution agreement, providing at least for the supplier to be required to use some degree of effort (e.g., “best efforts,”, “reasonable best efforts” or “reasonable efforts”) to supply product responsive to distributor’s submitted purchase orders. On a related topic, generally a distributor typically is only required to inform the supplier of lower purchase estimates if the distributor undertakes to do so (or undertakes a more general obligation with respect to the market) in the distribution agreement. However, even if the supplier is not, under an exclusive distribution agreement, required to supply the distributor with product, the supplier may still be subject to a contractual or common law obligation not to sell to third parties in the territory. New York courts held that suppliers that make direct sales to customers in the territory under an exclusive distribution agreement have breached their duties to the exclusive distributor.
- Retention of title: typically, in sales transactions on credit in the US, title is passed at the moment of initial sale. The buyer typically grants the supplier a security interest in the goods purchased, which if proper perfected under state law, affords the supplier with a priority position relative to other creditors with respect to the products provided (inventory) in the event of non-payment and enforcement.
Construction defects warranty
The law of “products liability” in the US is based on the law of torts. Under New York law, in cases of where an end user is injured by a defective product which was sold by the distributor under a distribution agreement, the end user generally is able to sue the distributor and the supplier of the product under one or more of the following theories: (i) strict liability; (ii) negligence; or (iii) breach of warranty. The usual theory of recovery against a distributor is strict liability. Under a strict liability theory, a supplier or distributor that sells a defective product while engaged in its normal course of business shall be liable for injuries it causes to customers, regardless of privity, foreseeability or the exercise of due care. Product liability cases also are brought under breach of warranty claims. Breach of warranty claims can be based on express warranties (e.g., from advertisement or a product label) and on implied warranties (typically, warranties of merchantability and fitness for a particular purpose under the provisions of the Uniform Commercial Code as adopted by the states). Lastly, negligence claims brought by plaintiffs are based on the improper conduct of the defendant, whether supplier or distributor or other participant in the distribution chain, with respect to the manner of distribution or care of the product sold (examples include improper storage or transport).
Under New York law, exceptions based on misuse, neglect or abuse by the suing party generally apply as defenses against liability under theories of strict liability, negligence or breach of warranty.
The supplier and distributor can allocate third-party liabilities (e.g., potential losses to be paid to plaintiffs in a products liability law suit) and related attorneys fees as between themselves through warranty and other indemnification provisions. Parties to a distribution agreement in the US often seek to put in place such re-allocation provisions not only because of potential liability resulting from a final, unfavorable judgment, but also because of the sizeable legal fees that litigants in the US often incur. In this regard, we note that in the US litigation costs are generally born by all of the litigating parties and not by the losing party as is common in many other countries. Such provisions may include indemnification provisions relating to product liability or trademark infringement claims brought by third parties, limitations on liability provisions (based on monetary caps and exclusions as to the types of damages that may be recovered, such as consequential, punitive, special and indirect damages) and disclaimers in respect of express or implied warranties that may otherwise apply under state law applicable to the distribution agreement.
Exclusivity
Exclusive-dealing provisions – under which the distributor undertakes not to distribute competing products in the territory – are quite common in distribution agreements. However, although it is not easy for a plaintiff to prevail, such a provision may be subject to challenge as an unlawful restriction on competition under federal and state antitrust law, typically under the following federal antitrust laws: (i) section 1 of the Sherman Act, which prohibits contracts “in restraint of trade;”; (ii) section 2 of the Sherman Act, which prohibits “attempt[s] to monopolize” and monopolization; (iii) section 3 of the Clayton Antitrust Act of 1914 […], which prohibits exclusivity arrangements that may “substantially lessen competition” or tend to create a monopoly; and, finally, (iv) section 5 of the Federal Trade Commission Act […], which prohibits “[u]nfair methods of competition.” In deciding these cases, typically courts apply the “rule of reason analysis” under which the exclusive dealing arrangements is analyzed considering a host of factors, including: (a) the defendant’s market power; (b) the degree of foreclosure from the market and barriers to entry; (c) the duration of the contracts; (d) whether exclusivity has the potential to raise competitors’ costs; (e) the presence of actual or likely anticompetitive effects; and (f) legitimate business justifications.
