Marketplace bans have sparked off considerable debate in the European Union in the past decade, reflecting mounting tension between brand owners and online retailers, and, on a larger scale, also between the online and offline economy. After numerous conflicting judgments from various national courts, the debate finally reached the European Court of Justice (CJ) in Coty Germany GmbH v. Parfümerie Akzente GmbH. The long-awaited judgment was expected to provide an answer to the question whether and in what circumstances marketplace bans can be viewed as a restriction of competition. However, to the disappointment of some, the CJ decided to err on the side of caution and issued a very narrow judgment addressing only one of the many scenarios in which marketplace bans occur, i.e., a scenario in which a retailer imposes a partial and insubstantial ban on online sales of luxury goods.
In this article, we put the Coty judgment in the context of the existing case law of the EU courts and Commission Regulation (EU) No. 330/210, (explaining the application of Article 101(3) to categories of vertical agreements and concerted practices) (Vertical Block Exemption) and we contrast it with the current reality of e-commerce. The purpose of this exercise is to answer two questions which still linger after the Coty ruling, namely: (1) can the Coty ruling be extended to scenarios other than the one directly addressed by the CJ; and (2) what does the Coty judgment mean in practice for companies involved in or affected by online sales.