On 17 December 2018, the European Commission (Commission) announced it was fining Guess, the clothing company, €39 million because its distribution arrangements prevented retailers from selling to consumers outside of their allocated territory and restricted online advertising. The Commission determined that Guess' activities allowed it to partition European markets, with the Commission observing that retail prices of Guess products were on average 5-10% higher in Central and Eastern European countries than in Western Europe. The Commission concluded that Guess' agreements restricted or distorted competition within the European Union's (EU) single market; Guess had deprived European consumers of a key benefit of the Single Market - the opportunity to shop across borders for better deals and more choice.
The huge fine, which has been discounted because Guess cooperated with the Commission, is a timely reminder for all businesses that appoint distributors or franchisees in the EU that their agreements and practices must comply with EU competition law. The Commission has not yet published its full decision in the Guess proceedings. The Commission's 2017 report into the e-commerce sector uncovered that more than one in ten surveyed retailers experienced cross-border sales restrictions in their distribution agreements so these practices are not uncommon. Accordingly, franchisors and suppliers should review their EU agreements and practices for compliance. In particular, they should not restrict distributors or franchisees from:
- Selling online without their prior authorisation without demonstrating a justification for doing so, which the Commission has set out will be difficult to do. We continue to see franchise and distribution agreements which give to the supplier/franchisor full discretion to authorise online sales. The Commission has sent a clear message that all suppliers/franchisors should have specific quality criteria on which any such decisions are based (and should not require higher standards than those employed on the website of the franchisor/supplier) and should not arbitrarily refuse to permit EU franchisees/distributors' websites.
- Responding and selling to unsolicited requests/orders from consumers outside their allocated territory. EU law has been clear on this issue for some time; suppliers/franchisors cannot restrict authorised retailers from fulfilling passive (unsolicited) orders from outside their territory or, in a selective distribution system, from supplying to other retailers/wholesalers within the system. These rules have been further strengthened by the Geo-blocking Regulation which became effective on 3 December 2018 and prohibits geo-blocking or any other geographically-based restriction which inhibits cross-border sales and online shopping. The Regulation does not prohibit restrictions on active sales outside an authorised distributor/franchisee/retailer's territory but such restrictions still need to comply with EU competition rules, and the Commission determined that Guess' restrictions did not do so.
- Using trade marks for online search advertising. Such activities can be restricted, for example, through brand guidelines but any restrictions must be compliant with EU competition rules.
- Deciding the retail price at which they sell their products. Other than in exceptional circumstances, such as a short discount campaign across a franchise network or to facilitate authorised retailers promoting a new product, resale price maintenance is outlawed.
Resale Price Maintenance takes many forms such as fixing prices, setting minimum prices, controlling discounts that can be given or the margins that retailers can make. The fine against Guess follows hot on the heels of fines ranging from €7.7m to €63.5m imposed by the Commission in July 2018 on Asus, Denon & Marantz, Philips and Pioneer who had engaged in resale price maintenance practices. These practices typically involved the suppliers using software tools to monitor online resale prices or being informed about discounting retailers by non-discounting retailers and the suppliers then asking the discounting retailers to raise their price and threatening or sanctioning those that would not do so.
Threatening, refusing to supply or using other sanctions against distributors or franchisees that do not follow resale price recommendations or which discount can all be forms of resale price maintenance. Sales/account management teams should be trained to avoid these types of activities and resale price monitoring should also be handled and used with great caution.
In addition to facing fines from the Commission, any business infringing EU competition rules also runs the risk of a damages claim from any person or company affected by their anti-competitive behaviours. There is a continuing rise in the number of such actions being taken against those that flout competition law.