Abstract

 

The distribution battle has moved online.

 

The competition law framework governing online sales has undergone a seismic shift. The Digital Markets Act (DMA[i]), which came into force on 4 November 2024, has fundamentally reshaped how suppliers can control digital distribution channels. Simultaneously, the Platform to Business Regulation (P2B)[ii] and sectoral enforcement across EU Member States – including high-profile cases before the CJEU and national courts – have exposed the tensions between brand preservation and competition principles.

 

For suppliers in high-image sectors, such as luxury, cosmetics, high-tech, the central question has shifted. Selective distribution itself remains lawful. What has become increasingly perilous is the contractual architecture surrounding digital channels: marketplace restrictions, approval mechanisms, and pricing controls that once seemed defensible now invite intense scrutiny.

 

This article dissects the current legal landscape governing online sales in selective distribution networks, drawing on recent CJEU case law, DMA enforcement signals, and French jurisprudence. It argues that the days of reflexive marketplace bans are over. What survives – and what thrives – is proportionate, objectively justified contractual control over online sales, carefully calibrated to the competitive reality of omnichannel retail.

 

It is recommended to:

 

• distinguish clearly between restriction types
• document the objective and proportionality analysis
• consider market-specific rules
• account for the DMA and national enforcement
• be proportionate, not reflexive

 

On this frontier, claims are staked with precision – vague restrictions get jumped.

 

Selective distribution in the digital age: a tool for the marketplace era – From principle to practice

 

European competition law has long endorsed selective distribution networks. The principle is venerable: a supplier may select distributors on uniform, non-discriminatory criteria without breaching Article 101 TFEU – provided the criteria are objective and applied even-handedly (CJEC, 25 October 1977, Metro SB-Großmärkte GmbH & Co. KG v Commission of the European Communities, 26/76)[iii].

 

The presence of online sales does not invalidate this permission. A brand may legitimately require that its products be sold in a retail environment – whether physical or digital – consistent with its positioning and perceived quality. As the CJEU confirmed in Coty Germany, the supplier’s interest in preserving brand image through controlled distribution channels is a recognised legitimate objective[iv].

 

What has changed is not the principle, but its application. The rise of marketplaces, social commerce, and influencer-driven retail has forced lawyers and compliance teams to rethink what “control” actually means in a digital economy where visibility, pricing transparency, and seller reputation are fungible commodities.

 

This is the Wild West of e-commerce, and brands are learning that hired guns and blanket bans don’t survive long against a savvy adversary.

 

Marketplaces: The control problem

 

A marketplace is not a neutral conduit – it is a competitive arena where brand owners lose command over key variables: presentation, juxtaposition with rival products, customer reviews, and pricing visibility. For a cosmetics brand concerned with heritage and prestige, the difference between a direct-to-consumer website and a Zalando storefront is categorical. On Zalando, for example, the brand sits alongside budget alternatives. On its own site, it controls the narrative.

 

This is why so many selective distribution agreements now contain clauses prohibiting or restricting sales through third-party platforms. The legal question has become: How restrictive can such clauses be before they cross into hardcore territory?

 

The answer, according to established case law, depends on whether the restriction genuinely serves a legitimate purpose or is merely a pretext for partitioning markets. Pierre Fabre case remains the lodestar: an absolute prohibition on all online sales constitutes a hardcore restriction unless it can be justified by the nature of the product and the requirements of its marketing[v].

 

French courts have acknowledged limited exceptions. In Bang & Olufsen, the Cour d’appel de Paris held that a blanket online prohibition could be proportionate for high-end audio equipment, given the technical complexity and need for expert advice[vi]. But such cases are narrow. They do not herald a return to blanket bans; they recognise that context matters.

 

That’s where the outlaws get hanged: when control masquerades as protection and, actually, just partitions the territory.

 

The danger zone: When proportionality collapses (and the line is crossed)

 

A marketplace restriction tips into hardcore territory when:

 

• It prevents passive sales to end customers in other Member States (cross-border restriction);
• It effectively forecloses online selling altogether, even if nominally permitting a website;
• It imposes minimum resale prices or actively polices discounts;
• It requires pricing approval that is de facto gatekeeping;
• It makes the digital channel so burdensome (documentation, audits, approval delays) that it becomes economically unusable.

 

The CJEU has signalled that such restrictions fall outside the scope of permissible brand protection. What matters is not ‘whether’ a brand wishes to preserve its image, but ‘how’ it goes about doing so. A quality standard for online presentation is defensible. A requirement that the distributor operate only on the brand’s own platform is not.

 

A critical nuance: the presence of one problematic clause does not automatically doom the entire selective distribution network. French courts, pragmatically, have entertained severability arguments: if the offending clause can be excised and the network remains functional and pro-competitive, the network may survive even if the clause is struck down[vii]. But this is not a safe harbour. Severability is a last resort, not a licence for sloppy drafting.

 

French case law illustrates this principle. In Garage de Bretagne v. Mercedes-Benz France, The Cour de cassation held that neither EU law nor French competition law prohibits the mere refusal by a supplier at the head of a qualitative selective distribution network to approve distributors who meet the selection criteria.

 

The Court confirmed that the network as a whole could remain valid even where the supplier’s exercise of discretion in approving distributors was contested. The mere presence of a disputed refusal-to-approve decision did not invalidate the underlying network structure[viii]. More broadly, the Paris Court of Appeal and French Cour de cassation have consistently adopted this pragmatic stance: even if certain contractual clauses are classified as hardcore restrictions, this does not rule out the possibility that the selective distribution network complies with competition rules, subject to an in-depth analysis of the practices implemented and their impact on the market. The mere presence of a black clause does not render the entire network illegal per se[ix].

 

In cases where the problematic clause can be isolated – whether by severability or narrow interpretation – the clause may simply be deemed unenforceable without invalidating the entire network.  This approach does not, however, constitute a safe harbour. Courts conduct a rigorous competitive effects analysis. As the rulings from 2019 and 2023 demonstrate[x], the lawfulness of a selective distribution network must be assessed on a case-by-case basis, depending on the actual effects of the clauses on competition. A supplier cannot draft a network carelessly and rely on severability to rescue it. The clause must genuinely be severable – not essential to the network’s operation or brand strategy – and the remaining network must demonstrably continue to serve a legitimate purpose and operate competitively.

 

The DMA factor: A new regulatory layer

 

Since November 2024, large online platforms designated as “gatekeepers” under the Digital Markets Act face obligations that ripple through the distribution ecosystem. Gatekeeper platforms must grant non-discriminatory access to third-party sellers, provide transparent algorithms, and refrain from self-preferencing. While the DMA does not directly govern selective distribution agreements, it has reshaped marketplace dynamics in ways that suppliers must consider when drafting restrictions.

 

A brand that prohibits sales through a DMA-designated gatekeeper may find the restriction economically illusory: the platform’s scale and reach mean that the restriction, while contractually binding, excludes the brand from the most high-traffic retail channel in Europe. Conversely, a brand that permits sales only on gatekeepers – to the exclusion of smaller, niche marketplaces – may run afoul of proportionality. The DMA has thus tilted the playing field in ways that rigorous proportionality analysis must now account for.

 

The Sheriff has arrived, and his name is the Digital Markets Act – the bad old days of unchecked gatekeeping are over.

 

Practical implications for brand owners and counsel

 

1. Distinguish clearly between restriction types

 

Do not conflate a prohibition on unauthorized marketplace use with an outright ban on online sales. The former may be defensible; the latter is not. Draft clauses should explicitly state: “Distributor may sell online via its own website or through selected platforms approved in writing by the Supplier, provided (i) [quality criteria] and (ii) [service commitments].” Avoid language such as “all online sales are prohibited” or “sales through third parties are forbidden.”.

 

2. Document the objective and proportionality analysis

 

A restrictive clause that does not articulate its justification is vulnerable. The agreement should state: “This restriction is necessary to preserve product image and ensure compliance with [specific quality or service standards] that are material to the positioning of the brand.” Be specific. Courts and authorities examine whether the stated objective is genuine and whether less restrictive means could achieve it.

 

3. Consider market-specific rules

 

Luxury goods and high-touch categories may support narrower digital restrictions than mass-market consumer goods. A haute couture brand defending a marketplace ban is on firmer ground than an appliance manufacturer. But even here, recent cases suggest that some online channel – whether the brand’s own site or approved partners – must remain available.

 

4. Account for the DMA and national enforcement

 

When drafting marketplace restrictions, consider whether they will withstand review under the DMA, the P2B Regulation, and the precedents of the Autorité de la concurrence (France) or equivalent agencies. A marketplace ban that was legally safe in 2020 may invite scrutiny in 2026 if it has the practical effect of partitioning markets or discriminating against smaller distributors.

 

5. Be proportionate, not reflexive

 

The question to ask is not “Can we prohibit marketplaces?” but “What is the minimum restriction necessary to preserve our legitimate brand interests?”. If a quality approval process, pricing guidelines, or presentation standards would suffice, they are preferable to an outright ban.

 

Think of these five principles as the frontier settlers’ handbook: follow them, and you’ll stake your claim securely.

 

Conclusion: Intelligent governance, not reflexive control

 

The law governing online sales in selective distribution networks is no longer in formation – it is settled. Selective distribution is lawful. Proportionate digital restrictions are lawful. Reflexive marketplace bans, blanket online prohibitions, and clauses that have the practical effect of foreclosing digital sales are not.

 

The era of “we don’t sell online” has passed. What has emerged is an era of intelligent governance: brands that can articulate clear, objective, proportionate criteria for their digital channels, and distributors that have real (if bounded) access to meaningful sales avenues. This is not a compromise that limits brands; it is a framework that protects them from legal liability whilst enabling them to manage their distribution networks effectively.

 

For counsel, the lesson is straightforward. When a brand asks “Can we ban marketplace sales?”, the answer is no – or at least, not universally and not without risk. The better question is: “How do we structure digital distribution so that it serves our brand positioning within the bounds of competition law?” That question yields compliant, durable, and commercially intelligent answers.

 

The frontier has been mapped, the rules are written, and the winners will be those smart enough to adapt rather than resist.

 

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[i] The main legislative texts for the Digital Markets Act (DMA) are Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and the Implementing Regulation

[ii] Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business users of online intermediation services

[iii] CJEC, 25 October 1977, Metro I, 26/76

[iv] CJEU, 6 December 2017, Coty Germany GmbH v Stadtsparkasse Magdeburg, C-230/16, para 37

[v] CJEU, 13 October 2011, Pierre Fabre Dermo-Cosmétique, C-439/09, paras 45–48

[vi] CA Paris, 13 March 2014, SARL Bang & Olufsen France, n° 2013/00714

[vii] “Black clauses” & Selective distribution agreement – Unyer

[viii] Cour de cassation, 16 February 2022, No. 20-11.754

[ix] “Black clauses” & Selective distribution agreement – Unyer

[x] “Black clauses” & Selective distribution agreement – Unyer

For hospital mergers, the latest change to German merger control law shifts powers more markedly away from the Federal Cartel Office and to the level of the 16 states (“Länder”). Even if the revenue thresholds for the application of German merger control law are exceeded, hospital mergers will need to be notified first to the authority of the state that is responsible for hospital planning. The planning authority of this state (or if more than one state is concerned the authorities of several states) can issue a confirmation that the merger is necessary to improve hospital care. Only if this confirmation is denied or not issued within three months the parties are allowed to file a merger control notification with the Federal Cartel Office (FCO). This deviation from the usual merger control law increases the states’ influence on the structure of the hospital market, while the number of cases in which the FCO is permitted to review hospital mergers continues to decline. The new rules, which also aim to resolve legal uncertainties, entered into force on 15 April 2026, as the new Section 186a of the German Act Against Restraints of Competition (ARC).

This amendment is already the second revision of the exemption for hospital mergers introduced at the end of 2021. Originally, the exemption from the scope of German merger control applied only to mergers supported by public moneys from a specific fund (the Hospital Structure Fund). The states considered this exemption too restrictive. At the end of 2024, a so-called “consolidation window” was opened until the end of 2030, which removed merger control for all those hospital mergers that involved a “cross-location concentration” of hospitals. From this amendment on, hospitals in some cases had a choice: either they applied for merger control clearance from the FCO – or they obtained confirmation from the hospital planning authority that the merger was necessary to improve hospital care. Strategically, it was advantageous to file with the FCO projects that did not raise competition concerns, while addressing transactions involving greater market concentration to state authorities, which tend to prioritize healthcare and structural policy considerations.

With the new section 186a ARC, the exemption is no longer linked to the elusive concept of “cross-location concentration,” but rather to well-known concepts of merger control. This leads to clearer rules and especially removes the speculation that the closure of hospital locations might be a prerequisite for the exemption. The exemption is thus intended to facilitate consolidation without forcing a reduction in beds or locations. In terms of scope, the provision covers all traditional forms of hospital care: inpatient, inpatient-equivalent, day-care, and semi-inpatient care, as well as pre- and post-hospitalization care and outpatient services.

At the same time, the new law draws clear boundaries: outpatient services that are not traditional forms of hospital care are expressly excluded from the exception. The merger of medical care centers therefore does not fall under the exemption and remains – if the revenue thresholds of German merger control law are exceeded – fully subject to an ex ante review by the FCO. The same applies to mergers of preventive care and rehabilitation facilities: They, too, do not benefit from the exemption and remain subject to notification and approval requirements if they reach the relevant turnover or transaction value thresholds.

In practice, this means for hospital operators and investors: The state’s hospital planning decision becomes the first and decisive hurdle for any major hospital merger. Without a confirmation of one or several hospital planning authorities or three months of inaction by the state authority, the path to the FCO is blocked. Transaction strategies must therefore be aligned even more closely with the respective state hospital planning and the structural goals pursued therein. At the same time, traditional antitrust law remains highly relevant in the healthcare sector – particularly for medical care centers and rehabilitation facilities, but also for scenarios where the scope of the new exemption does not apply. Overall, the initial review of hospital mergers is thus shifting even more away from the purely competition-law perspective of the FCO toward a more care-oriented approach by the states, while nationwide merger control now serves only as a secondary option.

The US tariffs on imports from all countries have greatly unsettled the global economy. According to US President Trump, the EU is to be subject to tariffs of on exports to the USA. For the European Union (EU), for example, tariffs of 20 % are to apply to exports to the USA. Shortly afterwards, US President Trump lowered the across-the-board tariffs to 10 % for 90 days to give countries the opportunity to negotiate. Only one thing is almost certain: there will be higher tariffs.

Companies should therefore already be considering the impact of higher tariffs on their trade transactions. The tariffs particularly affect products from key industries such as technology, steel, aluminium, automotive and agriculture. The US had already announced tariffs of 25 % on imports of these products in February 2025.

Scope of customs duties in supply relationships

First and foremost, companies should check the validity of their contracts under the new conditions and clarify how the costs of these duties are to be contractually allocated between the parties. This depends on the applicable law of the contract and the terms of the contract itself.

In practice, most contracts expressly or tacitly stipulate which party bears the costs for transport and customs, often by including an Incoterms® clause from the International Chamber of Commerce (ICC). In principle, the buyer is responsible for import clearance and the seller for export clearance. If the contracting parties have agreed the Incoterms® clause “Delivered Duty Paid” (DDP), the seller bears all costs for import and export duties up to the place of delivery, usually the buyer’s place of business. This means that the seller also bears the customs risk in cross-border transport under this clause. Mirroring the Incoterms® clause DDP, the buyer is fully responsible for customs clearance if the Incoterms® clause Ex Works (EXW) is agreed.

In the absence of a contractual customs agreement, the seller shall bear the costs of handover in accordance with the doubtful case provision of Section 448 (1) BGB for sales contracts, while the buyer shall bear the acceptance and shipping costs to a place other than the place of fulfilment. In the case of cross-border sales shipments pursuant to Section 447 (2) BGB, the buyer shall bear all transport costs incurred after handover to the carrier, including additional costs such as taxes and customs duties after leaving the place of fulfilment.

Statutory and contractual options for price adjustments

A statutory right to price adjustment between contracting parties generally only exists in the event of a gross disproportion between the contractually agreed service and the other party’s interest in the service. In the event of unexpected performance difficulties that lead to a mere disruption of the equivalence ratio between performance and consideration, which is likely to be the case with a short-term increase in customs duties, the affected party cannot refuse performance due to any impossibility of performance in accordance with Section 275 (2) BGB. The increase in customs duties does not constitute gross disproportionality for the affected party.

For the assertion of a right to contract adjustment in accordance with Section 313 (1) BGB, increased customs duties do not constitute a serious, significant change in which an unforeseen development occurs that may have existentially significant consequences for one party. Furthermore, foreseeable changes do not generally justify a right to contract adjustment in accordance with Section 313 (1) BGB, as the disruptions that are part of the normal contractual risk are borne by the affected party. Supply contracts always contain a certain risk with regard to price fluctuations or increased transport costs, for example if the contracting parties agree fixed prices.

Increased customs duties also do not constitute a case of force majeure. Force majeure is defined as an external event that has no operational connection and cannot be averted even with the utmost care that could reasonably be expected. However, higher customs duties do not generally prevent a contracting party from performing its obligations, provided that the duties merely cause higher costs.

Agreed hardship clauses in contracts allow the contractual conditions to be adjusted in the event of changed circumstances. The difficulty here, however, lies in the need for a clear definition of what is meant by a hardship case in order to avoid the undesirable effects of changes to customs duties. The categorisation of increased customs duties as a case of hardship depends on the individual design and interpretation of the clause, as there are no fixed limits.

Finally, it is common practice to agree price adjustment clauses in order to ensure flexibility in long-term contractual relationships. The exact wording of the clause is crucial, as case law places strict requirements on the effectiveness of the clause, particularly in the case of general terms and conditions (GTC) in accordance with Section 307 of the German Civil Code (BGB) and the provisions of the Price Clause Act (PreisklG). An effective price adjustment clause must be transparent and must not unreasonably disadvantage the contracting parties, for example by unilaterally increasing prices in the event of cost increases without a corresponding reduction in the event of cost reductions or if only one party can demand the adjustment. Precise wording and detailed drafting of the price adjustment clause are therefore essential.

Conclusion

Overall, it is crucial that companies affected by the new US tariffs act proactively and take appropriate measures to protect their international business models. Fair arrangements for price adjustment, delivery time extension and limitation of liability can help the contracting parties to react more flexibly to the changed trade conditions and maintain their long-term supply relationship and competitiveness.

The two founding partners are extending their international reach and taking a new step in their strategic development by forming a branded organisation of leading international professional services firms.

unyer has only one member per country and offers more than just legal services. Sharing a similar mind set and providing a full service offering, members of unyer maintain their independence and strong position in their local market.

With nearly 2 000 lawyers and consultants in more than 10 countries in Europe and Asia, unyer currently generates revenue of more than €500 million.

unyer has an ambition to develop rapidly in the top 20 world economies.

“We are very proud to be announcing the foundation of unyer today, a truly unique global organisation. We believe that with our new organisation and approach we will meet all our client’s expectations in a rapidly changing environment. With unyer we can provide all services in all jurisdictions, legal and beyond”, says Christine Blaise-Engel, CEO of unyer and Senior Partner at Fidal.

Markus Sengpiel, Member of the Executive Committee at unyer and Managing Partner of Luther, adds: “Our goal is to create an organisation with its members linked by exclusivity, which does not exist on the market today. Our new members will share our strong industry focus and our values based on collaboration, innovation and dynamism.”

unyer reflects the desire of Fidal and Luther to show a new way of perceiving business advisory practice.

Clients’ needs at the international level are changing rapidly and significantly. unyer is a game changer and can offer them scalable and innovative services and solutions.

The clients of unyer thereby benefit from the expertise and a perfect understanding of the local market.

With its strong industry focus, unyer anticipates the changes of markets and industries and incorporates megatrends in their advice to its clients.

unyer wants to attract new members, sharing a strong local presence, an impeccable reputation in their respective markets with a pragmatic approach. Geographical exclusivity will further strengthen the ties between all members. Members will be law firms, but also structures that offer additional services beyond legal advice.

The form of this new organisation is a Swiss “Verein” regrouping member firms, that retain their own separate legal status and branding in their local markets.