On-line Sales and Selection of Distribution Networks: Darwin or Posner?

This article dwells upon the changes introduced by the new set of EU antitrust rules enacted in relation to vertical restraints, with special regard to the issues of the selection of the members of a selective distribution network and of the (im)possible limitations applicable to on-line sales. Pursuant to Regulation 330 of 2010, and more in details the ancillary Guidelines, with the goal of balancing the opposite views which had emerged in the course of the preparatory works, the EU Commission, streamlining the existing national and EU case-law, has established three fundamental pillars governing antitrust assessment of selective distribution networks: (a) that manufacturers are allowed to make admission to the selective network contingent upon distributors having a «brickand-mortar» outlet in addition to an on-line site, thereby de facto allowing for the exclusion of pure internet resellers; (b) that the criteria laid down by manufacturers for the selection of distributors cannot be laid down, or applied, so as to discriminate between internet websites and traditional «brick-and-mortar» outlets; (c) that, save for exceptional circumstances, a distributor admitted to a selective network shall be empowered to fully resort to on-line sales for the distribution of the products and services marketed by the network.