“Black Clauses” in Selective Distribution Networks: Automatic Illegality?
Selective distribution networks are common for luxury, high-tech, or safety-critical products to preserve brand image and ensure proper use. However, the inclusion of so-called “black clauses,” deemed anticompetitive, raises questions about their impact on the network’s legality.
1. Legal Framework
Under EU and French competition law, selective distribution systems are lawful if based on qualitative criteria applied uniformly and non-discriminatorily (Article 101 TFEU; Article L.420-1 French Commercial Code). These systems are tolerated provided they do not impose restrictions “by object” or “by effect.”
2. What Are “Black Clauses”?
“Black clauses” are hardcore restrictions under the EU VBER Regulation (2022/720) and French Competition Authority guidelines, including:
- Resale Price Maintenance (RPM)
- Absolute territorial protection
- Ban on online sales without objective justification
- Prohibition of parallel imports or passive sales
- Restrictions on promotions or competing brands
3. Case Law Approach
Contrary to common belief, the mere presence of a “black clause” does not automatically invalidate the network:
- French Cour de cassation (2018): overturned rulings declaring networks unlawful solely due to restrictive clauses.
- Paris Court of Appeal (2019, 2023): emphasized case-by-case analysis.
- Cass. com. (2022): confirmed legality of qualitative selection criteria if applied uniformly.
Courts adopt a pragmatic approach, assessing the actual impact of clauses on competition. Clauses can be severable or narrowly interpreted, preserving the validity of the agreement.
4. Practical Implications
A network containing a “black clause” is not automatically void.
Authorities and courts conduct a concrete analysis of competitive effects.
If a clause is unlawful, it may simply be unenforceable without invalidating the entire network.
The legality of selective distribution networks must be assessed individually. The mere existence of restrictive clauses does not necessarily breach competition law.
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