NEWSLETTER-2019-metin

105 COMPETITION LAW ability ” and, ultimately, the viability of authorized online retailers within Guess’ selective distribution system 13 . The Commission pointed out that the restriction had the objective to restrict competition within the meaning of Article 101(1) of the Treaty on the Functioning of the European Union (“TFEU”) 14 . Online Sales Restrictions As it has been previously established, restriction of online sales is a hardcore restriction within Article 4(c) of the Vertical Agreement Block Exemption Regulation 15 , according to the ECJ in Pierre Fabre 16 . According to the Commission, another part of Guess’ e-com- merce strategy that favored its own website was to have a “limited number of independent operators selling Guess products online.” The Commission emphasized that this was achieved through a contractual term making online sales by authorized retailers conditional on the retailer first obtaining explicit authorization from Guess to conduct online sales. Additionally, no quality criteria was specified for decid- ing whether or not to grant authorization, and Guess had full discretion to decide whether or not to allow authorized retailers to sell online 17 . In light of the foregoing, the Commission pointed out that to contractually obtain great discretion, instead of ensuring compliance with objective criteria of a qualitative nature, constituted a violation of EU competition rules 18 . The Commission referred to the Coty rul- ing, wherein the ECJ held that a specific contractual clause within a selective distribution agreement, which pursues a legitimate objective, is lawful under Article 101(1) of the TFEU, only if the quality criteria are laid down “uniformly,” and are “not applied in a discriminatory fashion.” 19 13 Case AT.40428, 17.12.2018, para. 45-52. 14 Case AT.40428, 17.12.2018, para. 126. 15 Commission Regulation (EU), No. 330/2010, 20 April 2010. 16 Case C-439/09-2011. 17 Case AT.40428, 17.12.2018, para. 53-57. 18 Case AT.40428, 17.12.2018, para. 63. 19 Case AT.40428, 17.12.2018, para. 130.