The European Commission is preparing to submit comments before the Paris Court of Appeal in a case brought by cosmetic manufacturer Pierre Fabre Dermo-cosmétique (Pierre Fabre) against a French Competition Authority decision.
In October 2008, the French Competition Authority ordered Pierre Fabre to amend its contracts with approved distributors prohibiting them to sell certain cosmetic brands (e.g., Klorane, Avene, Ducray) online. Pierre Fabre claimed that online sales do not meet customers’ and health professionals’ expectations regarding its products and that the presence of a pharmacist is paramount to ensure that the consumer purchases the adequate product for their particular pathology. The French Competition Authority found, however, that the restriction of online sales placed excessive restrictions on the commercial freedom of Pierre Fabre’s distributors to the detriment of consumers' interests. It therefore concluded that this practice, which violates national and EU competition rules, cannot be exempted.
The Commission, known for considering that the prohibition of online sales within a selective distribution network is illegal unless there is an overriding reason to prohibit it, will likely support the French Competition Authority’s ruling. Submissions in proceedings before national courts are possible under Regulation 1/2003 when pursued in the interest of a coherent application of Articles 81 and 82 of the Treaty.