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This paper considers the implications of Generics and Budapest Bank for the legal treatment of vertical restraints (in particular in the context of the ongoing review of the Block Exemption Regulation). The analysis focuses on two of the main justifications for vertical restraints, namely brand protection and the fight against free riding. The logic underpinning Generics and Budapest Bank suggests that, insofar as they are capable of producing pro-competitive effects, vertical restraints aimed at preserving a firm's brand image and/or at addressing free riding concerns are not restrictive of competition by object. The lessons of experience and economic analysis lead to the same conclusion. Three main conclusions follow. First, there seems to be little support for the treatment of MFN clauses as hardcore restrictions. A case-by-case approach seems more suited to their nature, purpose and potential effects. Second, clauses typically found in online selective distribution agreements, including online marketplace and price comparison site bans, should not be treated differently from other restraints having the same object (brand protection). Third, the case law on RPM is a rara avis.

By an interlocutory order the District Court of Milan found that putting on sale on an electronic marketplace branded luxury products according to selling modalities that differ from the qualitative standards that the supplier has imposed on the resellers admitted to the selective distribution network created for the marketing of those products amounts to a trademark infringement. The Court of Milan confirms that the existence of a lawful competition-compliant selective distribution system constitutes a legitimate reason for not applying the principle of exhaustion. And more importantly, for the first time in Italy, the Court of Milan expressly found that the online sale of branded luxury products in defiance of the selling conditions imposed by the head of a selective distribution network infringes the trademark rights of the latter on such products. This paper reviews the decision of the Court of Milan and gives an insight into its practical implications.

The decision handed down by the French Competition Authority in the Stihl case is one of the first online sale restraint cases decided by national competition authorities of EU Member States after the judgment the Court of Justice of the EU rendered in Coty Germany. Stihl is noteworthy because it clarifies some issues that were left unsettled by Coty Germany. Importantly, the French Competition Authority has ruled that the principles set out in Coty Germany as for the competition assessment of online sales ban applies beyond the luxury sector. It also held that, under certain circumstances, a supplier can legitimately prohibit distributors admitted to its selective distribution network from selling its products from third parties’ e-commerce platforms (platform bans).

The strive for tighter control of distribution, quality and price – has led an increasing number of producers to include restrictions on the use of online marketplaces in their selective distribution agreements. This article considers the effects of such restrictions and the legal approach they call for. While acknowledging the legitimacy of proportionate restrictions on distribution, the article illustrates how an absolute ban on the use of online marketplaces may have a detrimental effect on market transparency, price competition, entry and expansion. The discussion illustrates how the legitimate interests of producers may be protected through less onerous means, without the increase in consumers’ search costs and the dampening of price competition. With that in mind, it is argued that these restrictions should be analysed on a case-by-case basis and should not benefit from the Vertical Block Exemption. Furthermore, the article considers whether absent proportionality and objective justification, the harmful effect of online marketplace bans, justifies their condemnation as anticompetitive by object.

A dataset on the use of transparency notices by Danish contracting authorities is analysed. Focus is on reliance on technical reasons to justify the use of the negotiated procedure without prior publication of a contract notice. It is found that technical reasons are for the major part used to procure medical equipment primarily for hospitals, and that the technical reasons relied on in the majority of cases may be categorised as product characteristics and compatibility/interoperability grounds. There are also certain indications of a market characterised by selective distributions agreements, a pattern which may explain that most of the contracts are awarded to companies established in Denmark. It is concluded that, even if the CJEU would acknowledge product characteristics and compatibility/interoperability as technical grounds, it is questionable whether it would accept that on these grounds the contract could only be fulfilled by one particular economic operator. The hypothesis that transparency notices and the sanctuary from ineffectiveness would imply that direct contract awards are fitted into the justifications provided for in the Public Procurement Directives cannot be conclusively supported or rejected on the basis of the examined dataset.