'Objective Justifications' of 'Restrictions by Object' in Pierre Fabre: A More Economic Approach to Article 101(1) TFEU?

Abstract

Pierre Fabre Dermo-Cosmétique SAS/Président de l’Autorité de la concurrence, Ministre de l’Économie, de l’Industrie et de l’Emploi, ECJ (Third Chamber), Judgment of 13 October 2011, C-439/09). This judgment provides practical guidance on the assessment of anti-competitive restraints in case of selective distribution systems. The Court held that the absolute ban on internet sales constitutes a restriction of passive sales and, as a "hardcore restriction," would in most cases fall outside the scope of the block exemption. It was also held that maintaining a prestigious brand image is not a legitimate aim for restricting competition. The Court’s usage of the term "objective justification," which could allegedly exclude an agreement from prohibition under Article 101(1) TFEU prompted discussions concerning the future treatment of «restrictions by object» in EU competition law.

Keywords: EU competition law, European Court of Justice, hardcore restriction, restriction by object