Click at Your Own Risk: Antitrust Pitfalls of Online Sales Bans

This article takes stock of the recent competition law trends in relation to online sales bans in Europe and provides some practical tips how online sales strategies could the structured in a more legally compliant way.

Online sales bans – what do we see in practice?

Despite (or perhaps as a result of) the increasing importance of e-commerce, brands seek to structure their go-to-market strategies by ensuring they retain some degree of control over online sales channels. Some of the commonly encountered measures that consumer brands at least consider implementing include:

• Absolute online sales bans – these mainly take the form of outright clauses in supply/distribution agreements where resellers are contractually (i) prohibited from selling any of the supplier's products via online websites or webstores, or (ii) penalised for concluding online sales (e.g. supplies are ceased, discounts are withdrawn, etc.).
• Own-website-only sales – here, resellers are only permitted to sell the brand's products via the reseller's own proprietary website, to the exclusion of all other online points of sale.
• Marketplace bans – such strategies are related to own-website-only clauses in that they primarily have the effect of prohibiting resellers from offering products via any third party marketplace platforms.
• Domains and out-of-territory orders – some brands are more interested in using online sales strategies as a way of controlling cross-border selling, such as by limiting sales from websites with specific country domains (e.g. sales permitted only from ".de" websites), or by preventing resellers from shipping to consumers ordering products outside the reseller's territory.
• High thresholds – it is also not unusual for brands, especially those operating selective distribution, to have disproportionately high requirements that resellers' online points of sale have to meet in order to be authorised by the brand for the sale of its products.
• Price discrimination – pricing is also sometimes used to discourage online selling, such as where significantly higher sell-in prices are set for products which end up being sold online, or where brands limit or withdraw benefits from their direct partners in relation to the latter's online sales activities.
• Licensing – a more discrete attempt at limiting online sales is when brands seek to defend and justify their online sale bans through IP/brand protection. Here, the ban would often take the form of a brand licensing its IP rights (e.g. trade marks, copyrighted materials and marketing assets) only for the reseller's offline points of sale. That is, while there is no express ban, the language of the IP licence indicates that online sales would be unlicensed and hence in breach of the brand's IP rights. In some cases, the same result is achieved by charging excessively high royalties for IP relating to products offered for sale online.
• Apportionment – while not prohibiting online sales, suppliers may in some cases choose to dictate what volumes or proportions of sales should be dedicated to the online and offline channels (e.g. requiring that at least 80% of all products must be resold through physical points of sale).
• In-store pick up only – it is also not uncommon to still come across situations where online sales are not per se prohibited, but where suppliers require their distributors to only allow online consumers to do in-store pickups – i.e. without offering consumers the option to have the ordered products shipped to their specified address.
• Protecting the crown jewels – finally, with a view to ensuring they have control over the most important SKUs (e.g. top sellers, iconic product lines, strategic categories), some brands are perfectly happy to have their products sold online, to the exclusion of a few products or product categories which the brands either only want to sell online by themselves, or they only want to have them sold in brick-and-mortar stores.  

What does competition law say about all this?

It's pretty clear that UK and EU competition law treats outright online sale bans as so-called "hardcore" restrictions of competition which are unable to benefit from any safe harbours. Where the limitation on online sales is short of a complete ban, it is still likely to be treated as a hardcore restriction when the use of the internet is effectively prevented as a result of the brand's e-commerce policy.

Enforcement efforts by competition authorities in Europe illustrate this position quite consistently. For example:

UK. Up & Running, a UK retailer of specialist running shoes and accessories, brought a claim before the Competition Appeal Tribunal against Deckers, the UK distributor of HOKA-branded running shoes. One of the main arguments of the specialist retailer was that Deckers had refused to approve Up & Running's website where it wanted to sell excess and out-of-season stock of HOKA products (at discounted prices). Deckers sought to justify its refusal decision under its selective distribution terms. However, in a judgment from October 2024, the Tribunal found that Deckers' selective distribution system lacked transparency and objective criteria for the review and approval of websites, and ultimately concluded that Deckers' refusal aimed to protect its main retail channel (preventing a clearance channel from competing). Deckers' conduct constituted an unlawful restriction on internet sales.

EU Commission. Only last month, the EU Commission imposed a massive EUR 119.7 million fine on Gucci (that's after a 50% reduction), primarily for engaging in anticompetitive resale price maintenance (see our summary here). While the decision is not yet public, the Commission's official press release also notes that Gucci operated an online sales ban, by restricting internet sales of a specific product line. The large size of the fine imposed on Gucci is thus explained in part by this very online sale ban.

France. The French Competition Authority (FCA) has been one of the most active enforcers in this space. In December 2023, the FCA imposed a whopping EUR 92 million fine on Rolex for operating a complete ban on online sales. In its selective distribution agreements, Rolex specified that the sale of its products is reserved exclusively to brick-and-mortar stores, and that distance selling is prohibited. The FCA ultimately concluded that Rolex's practice amounted to a "by object" restriction of competition (i.e. the most serious kind of restriction).   

Around the same time, the FCA also sanctioned Mariage Frères EUR 4 million for, amongst others, prohibiting online sales of its premium teas. Here, the brand operated an outright prohibition of internet selling in its general terms and conditions of sale, in order to be the exclusive online supplier of its products. While Mariage Frères technically allowed resellers to seek approval to be able to sell online by entering into a side agreement with the tea maker, the FCA found that this process was never actually used in practice, rendering the online sales ban absolute.

Only around two months after Rolex and Mariage Frères, the FCA delivered another internet ban decision, this time against the chocolate maker De Neuville (and its parent company Savencia). This was an interesting case because De Neuville's products are sold predominantly by mono-brand franchise stores. However, the FCA made it clear that franchising is no excuse to operate an online sales restriction. It found that De Neuville generally prohibited its franchisees from selling the French chocolates through the internet and that, much like Mariage Frères, this was done in an attempt by the brand to channel online sales traffic to its own D2C website. De Neuville's practices resulted in the FCA imposing another fine of EUR 4 million.   

Poland. The Polish competition enforcer (UOKiK President) seems to have focussed its recent online sales ban efforts specifically on the bicycle sector.

In 2023, UOKiK President imposed PLN 2.5 million (approx. EUR 0.6 million) on Merida Polska (the exclusive wholesale distributor of Medica bicycles in Poland) for preventing its Polish distributors from selling bicycles to consumers online. While the resellers could use the internet to advertise and market Merida bikes, their ability to conclude transactions online, or to ship the products to consumers, was restricted. Online consumers would have to come in-store to pick up the bikes and complete the transaction. In 2025, the Polish Competition Court dismissed Merida's appeal against this decision, observing that the method of delivery is a crucial element of online sales, as compared to other forms of selling.

More recently, in January 2025 UOKiK President imposed a fine of PLN 4.3 million (approx. EUR 1 million) on Scott Sportech Poland for anticompetitive practices much resembling those of Merida. Again, there was no outright ban on online selling, but Scott Sportech Poland imposed on its dealers the obligation to personally hand in to the customer a fully assembled bike and prohibited them from selling via third party platforms such as Allegro or eBay. As such, dealers' websites could only be used for advertising but not for transactional purposes.

Spain. One of the most interesting recent online sales cases is the Spanish Competition Authority's (CNMC) 2023 case concerning the practice of brand gating. Here, a major US consumer electronics brand agreed that only a number resellers, as dictated by the brand, would be permitted to sell its products on Amazon Spain. The CNMC found that this brand gating policy resulted in more than 90% of the brand's resellers active on Amazon Spain from being excluded from the main marketplace in the country – so a major limitation on online sales. Fundamentally, the brand gating efforts, and the brand's selection of resellers who could sell via Amazon Spain, was done outside a legitimate selective distribution programme (thus limiting the applicability of the famous EU Coty case pursuant to which some marketplace bans are permitted). The CNMC also found that the brand had imposed on Amazon a limitation on marketing actions which promoted the use of competing products.

The CNMC ended up imposing a fine on the brand of EUR 143.6 million and EUR 50.5 million on Amazon.   

Italy. Earlier this year, the Italian Competition Authority launched an investigation into Morellato (a leading operator in the jewellery and watch sector) over a suspected antitrust violation by adopting commercial terms prohibiting authorised distributors from selling its products on online marketplaces and third-party platforms. Morellato is said to have entered into selective distribution agreements expressly prohibiting retailers from selling its products on online marketplaces, while retaining the right to do so itself, including through dedicated stores on digital sales platforms (such as Amazon). The investigation is still pending.

Czech Rep. In 2023, the Czech Competition Authority imposed a fine of CZK 12.7 million (approx. EUR 0.5 million) on EURONA, a Czech manufacturer of home cosmetics and household care products. In addition to engaging in anticompetitive resale price maintenance, EURONA restricted online sales of its products via e-shops operated by its independent resellers. This was the first online sales ban case in the country. 

Luckily, it's not all doom and gloom

One of the key mistakes a brand can make when structuring its e-commerce strategy is to forget to take competition law into account (or to do so too late). This is because, under UK and EU competition law, companies actually enjoy significant flexibility with respect to the design of their distribution strategies that enhance control over online sales while remaining legally compliant. The EU's latest (2022) Guidelines on Vertical Restraints have provided important tips in this regard, after relaxing the stringent standards of the previous iteration of the Guidelines. Under this framework, competition law can be utilised as a shield to ensure legal compliance but also as a sword to attain commercial goals and strategies. For example:

• Suppliers can legitimately prevent their wholesale distributors from selling directly to consumers, including via any D2C website or webstore.
• Selective distribution is a hugely powerful tool which, if properly structured, is capable of ensuring that only the most high-quality online points of sale which meet the brand's objective quality standard can be permitted to sell the products. Put differently, selective distribution allows the brand to legitimately prohibit sales from those points of sale which are subpar. Moreover, in such distribution systems, a requirement to have at least one brick-and-mortar store/showroom or that a specific volume of goods is sold offline may also be a useful tool.
• Performance-based or dual pricing policies may allow brands to reflect the differences is costs and investments associated with online versus offline channels, provided they are applied transparently and proportionately. As such, it may be possible to charge resellers higher prices for channels where costs and investments are lower (e.g. online).
• Engaging genuine agents or e-concessions for the sale of branded products might offer the greatest degree of control over online selling (and even price setting), provided that the agents or e-concession partners operate as an extension of the brand, without themselves bearing the associated risks connected with costs and investments.
• Restricting sales via third-party marketplaces, including total bans on marketplace selling, may be possible if such policies are in line with the EU's latest (2022) Vertical Guidelines and do not effectively constitute a total ban on internet selling.

Accordingly, there are many mechanisms which, when carefully structured, enable businesses to balance competition compliance with strategic control and brand protection, fostering sustainable growth in an increasingly digital marketplace. These mechanisms, however, must be designed and supported by a thorough legal and economic assessment to ensure that they remain within the limits of the law. This is particularly important in relation to the information flows that may exist between the producer and the distributors.

If you are a consumer brand operating in Europe, it's worth considering whether your e-commerce strategies are competition-compliant and whether they allow you to attain your strategic goals. Fieldfisher lawyers have well-known expertise in UK and EU competition rules, in particular in terms of their application to vertical distribution agreements. If you would like to understand whether you are at risk in this area, please get in touch.