We also drew your attention to a series of German cases which challenged the official guidance and suggested that it will not always be possible, even in a selective distribution system, to prohibit sales through third party platforms.
Until now the German approach has remained untested by the European courts although it has been approved by the Federal Cartel Office (Germany’s national competition regulator). This month however has seen a German court make a direct application to the European Court of Justice for clarification on the correct interpretation on the law in this area, specifically in relation to whether distributors can be banned from advertising goods on third party platforms under a selective distribution agreement.
Although we may well find ourselves outside the remit of the ECJ within the next few years, the ECJ’s decision on this matter may give some short term clarity and could potentially shape the position adopted in any post-Brexit system. We will provide further updates on this matter in due course, however, if you have any queries on the subject please contact firstname.lastname@example.org.