Sele Selectiv ctive dis istrib tributio ution in in the the - - PowerPoint PPT Presentation

Sele Selectiv ctive dis istrib tributio ution in in the the

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Pablo Ibáñez Colomo London School of Economics

Selectiv Selective dis istrib tributio ion in in the the online

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world

Selectiv Selective di distribut bution in in the the online

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world

• Consider the questions raised before the Court in Case C‐230/16, Coty

v Akzente

• ‘Do selective distribution systems that have as their aim the distribution of

luxury goods and primarily serve to ensure a ‘luxury image’ for the goods constitute an aspect of competition that is compatible with Article 101(1) TFEU?’

• ‘Does it constitute an aspect of competition that is compatible with Article

101(1) TFEU if the members of a selective distribution system […] are prohibited generally from engaging third‐party undertakings discernible to the public to handle internet sales[…]?’

• Does the relevant case law not suggest that the answer to these

questions is yes?

Selectiv Selective di distribut bution in in the the online

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• Since Metro I, the Court has understood that the essence of selective

distribution is the prohibition of sales to non‐members

• Is a ban on third party platforms fundamentally different from this key

feature?

• It has never been a secret that selective distribution leads to price rigidity

(Metro I and Metro II), but this is not enough to establish a restriction

• Businesses resort to selective distribution to preserve their brand

image

• Can the law ignore this reality? It is known to be pro‐competitive, and as such

not the sort of clause that is deemed restrictive by object

• In Pronuptia, the Court held that measures aimed at preserving the

uniformity and reputation of a business are not restrictive

Re Regulation, competitio ition and nd

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Pablo Ibáñez Colomo London School of Economics

‘Com ‘Competitio tition is is fo for lo lose sers’

‘Com ‘Competitio tition is is fo for lo lose sers’

• The activities of the so‐called Internet overlap to some extent; on the
• ther hand, they have carved a unique niche
• Suffice it to think of the overlaps between WhatsApp and Skype, or between

Google (Shopping) and Amazon

• Thus, in a sense, one could argue that competition is intense in online

markets; in another, that it is severely weakened

• What are the implications for competition law and policy?
• Can ‘copycat competition’ (e.g. Google Shopping) be meaningfully protected?

Should it be protected?

• Establishing causality is a challenge of particular importance: would some

firms have left the market anyway?

Pl Platform rms and and busin business ss model models

Pl Platform rms and and busin business ss model models

• Online platforms pursue a variety of strategies and business models
• They vary in the range of activities they control and to which they give access

to third parties

• These choices have implications for their business model
• There is not a unique way in which they make money
• Some contentious restraints are the intrinsically linked to a particular business model
• What is the role of competition law, against this background?
• Is there a reason to believe that a more open platforms is, always and

everywhere better for competition?

• Is the legal system equipped to deal with the complex trade‐offs involved?