excluding its network exclusively Internet vendors

With the development of specialized merchant sites, integration of the new form of distribution that is the sale on the Internet in the Organization and operation of distribution networks raises questions. Can vendors refuse to sell to these distributors "exclusively Internet" and thus exclude them from their network

From the point of view of competition law, this sensitive issue between two seemingly conflicting concerns: one is related to the risk of exclusion of a determined distribution system reprehensible in that it has the effect of protecting existing forms of trade and to exclude from the market of new operators; the other aims to maintain freedom for a provider to ask the conditions for distribution of its products and register including through a network of selective distribution for criteria for accreditation, provided that they are accurate, qualitative, proportionate and applied in a non-discriminatory manner.

The competition Board has this determination in a decision of 24 July 2006 relating to the distribution of the marketed watches by Festina France, under the terms of an expected in principle: "in the absence of these circumstances existence in the distribution of hardcore restrictions of competition agreement, if it does not exceed 30 market share, a provider can select its distributors using such as test that they have a store to welcome the public and expose". the contract products, i.e. excluding its network "exclusively Internet" vendors. "This decision is made in the implementation of the new commitments procedure recently introduced in law French (1) for the companies concerned to propose measures to raise competition concerns raised against them. In this case, Bijourama, specialized in sale exclusively on the Internet of products of watchmaking and jewellery, complained to the competition authority of Festina France had opposed a denial of accreditation to integrate its network of selective distribution of watches. Bijourama considered that this refusal was discriminatory to vendors "pure Internet" and that the selective distribution of Festina France contract was not lawful in that it excluded a form of distribution.

While challenging the merits of the referral to the Council, Festina France proposed consisting of commitments to modify its selective distribution contract, to include provisions relating to the sale online, while maintaining its refusal to approve companies selling exclusively on the Internet.

The Board's decision validating these commitments, it may be surprising in that it penalizes clearly a form of trade, is explained by taking into account costs of constitution and operation of a network (physical outlets,... customer service management) and the risk of parasitism linked to exclusive sale on the Internet. Indeed, the consumer, after he went into a store where the product is exposed, can then decide to purchase a specialized site offering more attractive prices. Thus, for the Council, "if it is favourable to the consumer in a sense, as it facilitates the price competition, the sale on the Internet can therefore also be a source of distortions of competition between vendors and as being likely to cause loss or depletion of certain services, inducing less positive effects for the consumer."

In the expected above principle, the Council does not distinguish according to the nature of the distributed product. Accordingly, as the characteristics of a product will support the implementation by the supplier of a selective distribution system, these same features will also justify the requirement of a physical sales outlet in which these products will be exhibited to the public.