Pierre Fabre Dermo-Cosmétique SAS v Président de l’Autorité de la concurrence and Ministre de l’Économie, de l’Industrie et de l’Emploi.
Date: 2011-10-13
34. It must first of all be recalled that, to come within the prohibition laid down in Article 101(1) TFEU, an agreement must have ‘as [its] object or effect the prevention, restriction or distortion of competition within the internal market’. It has, since the judgment in Case 56/65 LTM  [1966] ECR 235 been settled case-law that the alternative nature of that requirement, indicated by the conjunction ‘or’, leads, first, to the need to consider the precise purpose of the agreement, in the economic context in which it is to be applied. Where the anticompetitive object of the agreement is established it is not necessary to examine its effects on competition (see Joined Cases C‑501/06 P, C‑513/06 P, C‑516/06 P and C‑519/06 P GlaxoSmithKline Services and Others  v Commission and Others [2009] ECR I‑9291, paragraph 55 and the case-law cited).
35. For the purposes of assessing whether the contractual clause at issue involves a restriction of competition ‘by object’, regard must be had to the content of the clause, the objectives it seeks to attain and the economic and legal context of which it forms a part (see GlaxoSmithKline and Others  v Commission and Others , paragraph 58 and the case law cited).
39. As regards agreements constituting a selective distribution system, the Court has already stated that such agreements necessarily affect competition in the common market (Case 107/82 AEG‑Telefunken  v Commission  [1983] ECR 3151, paragraph 33). Such agreements are to be considered, in the absence of objective justification, as ‘restrictions by object’.
40. However, it has always been recognised in the case-law of the Court that there are legitimate requirements, such as the maintenance of a specialist trade capable of providing specific services as regards high-quality and high-technology products, which may justify a reduction of price competition in favour of competition relating to factors other than price. Systems of selective distribution, in so far as they aim at the attainment of a legitimate goal capable of improving competition in relation to factors other than price, therefore constitute an element of competition which is in conformity with Article 101(1) TFEU ( AEG‑Telefunken  v Commission , paragraph 33).
41. In that regard, the Court has already pointed out that the organisation of such a network is not prohibited by Article 101(1) TFEU, to the extent that resellers are chosen on the basis of objective criteria of a qualitative nature, laid down uniformly for all potential resellers and not applied in a discriminatory fashion, that the characteristics of the product in question necessitate such a network in order to preserve its quality and ensure its proper use and, finally, that the criteria laid down do not go beyond what is necessary (Case 26/76 Metro SB‑Großmärkte  v Commission  [1977] ECR 1875, paragraph 20, and Case 31/80 L’Oréal  [1980] ECR 3775, paragraphs 15 and 16).
42. Although it is for the referring court to examine whether the contractual clause at issue prohibiting de facto  all forms of internet selling can be justified by a legitimate aim, it is for the Court of Justice to provide it for this purpose with the points of interpretation of European Union law which enable it to reach a decision (see L’Oréal , paragraph 14).
44. In that regard, it should be noted that the Court, in the light of the freedoms of movement, has not accepted arguments relating to the need to provide individual advice to the customer and to ensure his protection against the incorrect use of products, in the context of non-prescription medicines and contact lenses, to justify a ban on internet sales (see, to that effect, Deutscher Apothekerverband , paragraphs 106, 107 and 112, and Case C‑108/09 Ker‑Optika  [2010] ECR I-0000, paragraph 76).