The selective distribution after the Coty judgement: Clarifications and grey areas

This article puts the Coty decision into perspective, by mobilizing both a legal and an economic analysis. First, we show that the Coty judgement clarifies the somewhat forgotten analytical grid for selective distribution systems compliance with antitrust law. It highlights the need to carry-out a two-step review: compliance with article 101§1 TFUE and, if necessary, analysis of a possible exemption. We then point out that the Coty judgement, like previous judgments, does not solve the question of the definition and boundaries of « luxury products ». To assess the merits of selective distribution, it is necessary to move away from a sector-based approach towards a functional and transversal analysis, based on the need for a service before or after the purchase of the product. Third, we show that the Coty judgment, by allowing suppliers to prohibit sales on marketplaces, restraints a mode of distribution, favorable to some price competition. Although the judgment currently adopts a rather unfavorable position on marketplaces, it does not rule out any future evolution, given the major changes under way in e-commerce, particularly in the luxury sector.

*This article is an automatic translation of the original article, provided here for your convenience. Read the original article. Introduction 1. Judging by the impact it has had, the Coty judgment of 6 December 2017 [1] marks an important moment in the abundant case law on the legality of a selective distribution network under antitrust law. 2. Let us briefly recall the dispute at issue in this case: Coty Germany (hereinafter 'Coty'), a supplier of luxury cosmetic products in Germany, brought an action before a German court against one of its authorised distributors, the company Parfümerie Akzente, which had refused to sign an amendment to its selective distribution contract containing the following clause : "(...) the depositary is authorised to offer and sell the products on the

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Emmanuel Combe, Elodie Camous-Léonard, The selective distribution after the Coty judgement: Clarifications and grey areas, November 2018, Concurrences N° 4-2018, Art. N° 88125, pp. 55-73

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