Online Sales Restrictions: The Commission Puts Its Money Where Its Mouth Is

 
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The effects-based approach towards vertical restraints, as applied by the Dutch competition authority, is seemingly losing ground. The European Commission appears to be siding with a long list of national competition authorities taking a hard line on vertical restraints. Following the preliminary results of the antitrust e-commerce sector inquiry, the Commission has launched three targeted investigations into suspected online sales restrictions. Most competition authorities have been tackling similar issues for a while now; most recently in the German competition authority's publication of draft guidelines on vertical price fixing in food retail, and the UK competition authority's warning to online retailers against price-fixing through automated re-pricing software. Companies are strongly advised to double-check their distribution agreements and underlying commercial policies for possible online vertical restraints. Software providers are advised to check their compliance programmes too.

The antitrust sector inquiry into e-commerce was launched in May 2015 and is part of the Commission's Digital Single Market Strategy, which seeks to remove barriers to cross-border e-commerce. Following this ongoing sector inquiry, the European Commission has launched investigations into:

Consumer electronics manufacturers

The Commission has launched an in-depth investigation into whether Asus, Denon & Marantz, Philips and Pioneer have prevented their online retailers from setting their own retail prices for consumer electronics products This is a topic which must have been troubling the Commission long before the launch of the e-commerce sector inquiry, as dawn raids had already been conducted in 2013 on suspicion of restrictive online sales practices. According to a speech by Competition Commissioner Vestager in March 2015, inspections were also carried out at a number of online retailers around that time.

However, the press release announcing the Commission's investigation seems to imply that the online retailers involved will be left untouched. The German competition authority has no intention of doing this, since its decisional practice showed that food retailers played a significant role in resale price maintenance practices. The draft guidance note on vertical price fixing in food retail expressly stipulates that competition rules apply to both the supplier's interference with a retailer's pricing policy and to the retailer's conduct, because the...

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