P2B Regulation – How to adapt Platform services and Search Engines

2 8 月 2020

  • 欧洲
  • 非诉讼解决机制
  • 分销协议
  • 电子商务

Summary: Since 12 July 2020, new rules apply for platform service providers and search engine operators – irrespective of whether they are established in the EU or not. The transition period has run out. This article provides checklists for platform service providers and search engine operators on how to adapt their services to the Regulation (EU) 2019/1150 on the promotion of fairness and transparency for commercial users of online intermediation services – the P2B Regulation.

The P2B Regulation applies to platform service providers and search engine operators, wherever established, provided only two conditions are met:

(i) the commercial users (for online intermediation services) or the users with a company website (for online search engines) are established in the EU; and

(ii) the users offer their goods/services to consumers located in the EU for at least part of the transaction.

Accordingly, there is a need for adaption for:

  • Online intermediation services, e.g. online marketplaces, app stores, hotel and other travel booking portals, social media, and
  • Online search engines.

The P2B Regulation applies to platforms in the P2B2C business in the following constellation (i.e. pure B2B platforms are exempt):

Provider -> Business -> Consumer

The article follows up on the introduction to the P2B Regulation here and the detailed analysis of mediation as method of dispute resolution here.

 Checklist how to adapt the general terms and conditions of platform services

Online intermediation services must adapt their general terms and conditions – defined as (i) conditions / provisions that regulate the contractual relationship between the provider of online intermediation services and their business users and (ii) are unilaterally determined by the provider of online intermediation services.

The checklist shows the new main requirements to be observed in the general terms and conditions (“GTC”):

  1. Draft them in plain and intelligible language (Article 3.1 a)
  2. Make them easily available at any time (also before conclusion of contract) (Article 3.1 b)
  3. Inform on reasons for suspension / termination (Article 3.1 c)
  4. Inform on additional sales channels or partner programs (Article 3.1 d)
  5. Inform on the effects of the GTC on the IP rights of users (Article 3.1 e)
  6. Inform on (any!) changes to the GTC on a durable medium, user has the right of termination (Article 3.2)
  7. Inform on main parameters and relative importance in the ranking (incl. possible influence of remuneration), without algorithms or business secrets (Article 5.1, 5.3, 5.5)
  8. Inform on the type of any ancillary goods/services offered and any entitlement/condition that users offer their own goods/services (Article 6)
  9. Inform on possible differentiated treatment of goods / services of the provider or individual users towards other users (Article 7.1, 7.2, 7.3)
  10. No retroactive changes to the GTC (Article 8a)
  11. Inform on conditions under which users can terminate contract (Article 8b)
  12. Inform on available or non-available technical and contractual access to information that the Service maintains after contract termination (Article 8c)
  13. Inform on technical and contractual access or lack thereof for users to any data made available or generated by them or by consumers during the use of services (Article 9)
  14. Inform on reasons for possible restrictions on users to offer their goods/services elsewhere under other conditions (“best price clause”); reasons must also be made easily available to the public (Article 10)
  15. Inform on access to the internal complaint-handling system (Article 11.3)
  16. Indicate at least two mediators for any out-of-court settlement of disputes (Article 12)

These requirements – apart from the clear, understandable language of the GTC, their availability and the fundamental ineffectiveness of retroactive adjustments to the GTC – clearly go beyond what e.g. the already strict German law on general terms and conditions requires.

Checklist how to adapt the design of platform services and search engines

In addition, online intermediation services and online search engines must adapt their design and, among other things, introduce internal complaint-handling. The checklist shows the main design requirements for:

a) Online intermediation services

  1. Make identity of commercial user clearly visible (Article 3.5)
  2. State reasons for suspension / limitation / termination of services (Article 4.1, 4.2)
  3. Explain possible differentiated treatment of goods / services of providers themselves or users in relation to other users (Article 7.1, 7.2, 7.3), see above
  4. Set an internal complaint handling system, with publicly available info, annual updates (Article 11, 4.3)

b) Online search engines

  1. Explain the ranking’s main parameters and their relative importance, public, easily available, always up to date (incl. possible influence of remuneration), without algorithms or trade secrets (Article 5.2, 5.3, 5.5)
  2. If ranking changes or delistings occur due to notification by third parties: offer to inspect such notification (Article 5.4)
  3. Explain possible differentiated treatment of goods / services of providers themselves or users in relation to other users (Article 7.1, 7.2, 7.3)

The European Commission will provide guidelines regarding the ranking rules in Article 5, as announced in the P2B Regulation – see the overview here. At the same time, providers of online intermediation services and online search engines shall draw up codes of conduct together with their users.

Practical Tips

  • The Regulation significantly affects contractual freedom as it obliges platform services to adapt their general terms and conditions.
  • The Regulation is to be enforced by “representative organisations” or associations and public bodies, with the EU Member States ensuring adequate and effective enforcement. The European Commission will monitor the impact of the Regulation in practice and evaluate it for the first time on 13.01.2022 (and every three years thereafter).
  • The P2B Regulation may affect distribution relationships, in particular platforms as distribution intermediaries. Under German distribution law, platforms and other Internet intermediation services acting as authorised distributors may be entitled to a goodwill indemnity at termination (details here) if they disclose their distribution channels on the basis of corresponding platform general terms and conditions, as the Regulation does not require, but at least allows to do (see also: Rohrßen, ZVertriebsR 2019, 341, 344–346). In addition, there are numerous overlaps with antitrust, competition and data protection law.

Summary – What can the owner (or licensee) of a trademark do if an unauthorized third party resells products with its trademark on an online platform? This issue was addressed in the judgment of C-567/18 of 2 April 2020, in which the Court of Justice of the European Union confirmed that platforms (Amazon Marketplace, in this case) storing goods which infringe trademark rights are not liable for such infringement, unless the platform puts them on the market or is aware of the infringement. Conversely, platforms (such as Amazon Retail) that contribute to the distribution or resell the products themselves may be liable.

Background

Coty – a German company, distributor of perfumes, holding a licence for the EU trademark “Davidoff” – noted that third-party sellers were offering on Amazon Marketplace perfumes bearing the “Davidoff Hot Water” brand, which had been put in the EU market without its consent.

After reaching an agreement with one of the sellers, Coty sued Amazon in order to prevent it from storing and shipping those perfumes unless they were placed on the EU market with Coty’s consent. Both the Court of First Instance and the Court of Appeal rejected Coty’s request, which brought an appeal before the German Court of Cassation, which in turn referred the matter to the Court of Justice of the EU.

What is the Exhaustion of the rights conferred by a trademark

The principle of exhaustion is envisaged by EU law, according to which, once a good is put on the EU market, the proprietor of the trademark right on that specific good can no longer limit its use by third parties.

This principle is effective only if the entry of the good (the reference is to the individual product) on the market is done directly by the right holder, or with its consent (e.g. through an operator holding a licence).

On the contrary, if the goods are placed on the market by third parties without the consent of the proprietor, the latter may – by exercising the trademark rights established by art. 9, par. 3 of EU Regulation 2017/1001 – prohibit the use of the trademark for the marketing of the products.

By the legal proceedings which ended before the Court of Justice of the EU, Coty sought to enforce that right also against Amazon, considering it to be a user of the trademark, and therefore liable for its infringement.

What is the role of Amazon?

The solution of the case revolves around the role of the web platform.

Although Amazon provides users with a unique search engine, it hosts two radically different sales channels. Through the Amazon Retail channel, the customer buys products directly from the Amazon company, which operates as a reseller of products previously purchased from third party suppliers.

The Amazon Marketplace, on the other hand, displays products owned by third-party vendors, so purchase agreements are concluded between the end customer and the vendor. Amazon gets a commission on these transactions, while the vendor assumes the responsibility for the sale and can manage the prices of the products independently.

According to the German courts which rejected Coty’s claims in the first and second instance, Amazon Marketplace essentially acts as a depository, without offering the goods for sale or putting them on the market.

Coty, vice versa, argues that Amazon Marketplace, by offering various marketing-services (including: communication with potential customers in order to sell the products; provision of the platform through which customers conclude the contract; and consistent promotion of the products, both on its website and through advertisements on Google), can be considered as a “user” of the trademark, within the meaning of Article 9, paragraph 3 of EU Regulation 2017/1001.

The decision of the Court of Justice of the European Union

Advocate General Campos Sanchez-Bordona, in the opinion delivered on 28 November 2019, had suggested to the Court to distinguish between: the mere depositaries of the goods, not to be considered as “users” of the trademark for the purposes of EU Regulation 2017/1001; and those who – in addition to providing the deposit service – actively participate in the distribution of the goods. These latter, in the light of art. 9, par. 3, letter b) of EU Regulation 2017/1001, should be considered as “users” of the trademark, and therefore directly responsible in case of infringements.

The Bundesgerichtshof (Federal Court of Justice of Germany), however, had already partially answered the question when it referred the matter to the European Court, stating that Amazon Marketplace “merely stored the goods concerned, without offering them for sale or putting them on the market”, both operations carried out solely by the vendor.

The EU Court of Justice ruled the case on the basis of some precedents, in which it had already stated that:

  • The expression “using” involves at the very least, the use of the sign in the commercial communication. A person may thus allow its clients to use signs which are identical or similar to trademarks without itself using those signs (see Google vs Louis Vuitton, Joined Cases C-236/08 to C-238/08, par. 56).
  • With regard to e-commerce platforms, the use of the sign identical or similar to a trademark is made by the sellers, and not by the platform operator (see L’Oréal vs eBay, C‑324/09, par. 103).
  • The service provider who simply performs a technical part of the production process cannot be qualified as a “user” of any signs on the final products. (see Frisdranken vs Red Bull, C‑119/10, par. 30. Frisdranken is an undertaking whose main activity is filling cans, supplied by a third party, already bearing signs similar to Redbull’s registered trademarks).

On the basis of that case-law and the qualification of Amazon Marketplace provided by the referring court, the European Court has ruled that a company which, on behalf of a third party, stores goods which infringe trademark rights, if it is not aware of that infringement and does not offer them for sale or place them on the market, is not making “use” of the trademark and, therefore, is not liable to the proprietor of the rights to that trademark.

Conclusion

After Coty had previously been the subject of a historic ruling on the matter (C-230/16 – link to the Legalmondo previous post), in this case the Court of Justice decision confirmed the status quo, but left the door open for change in the near future.

A few considerations on the judgement, before some practical tips:

  • The Court did not define in positive terms the criteria for assessing whether an online platform performs sufficient activity to be considered as a user of the sign (and therefore liable for any infringement of the registered trademark). This choice is probably dictated by the fact that the criteria laid down could have been applied (including to the various companies belonging to the Amazon group) in a non-homogeneous manner by the various Member States’ national courts, thus jeopardising the uniform application of European law.
  • If the Court of Justice had decided the case the other way around, the ruling would have had a disruptive impact not only on Amazon’s Marketplace, but on all online operators, because it would have made them directly responsible for infringements of IP rights by third parties.
  • If the perfumes in question had been sold through Amazon Retail, there would have been no doubt about Amazon’s responsibility: through this channel, sales are concluded directly between Amazon and the end customer.
  • The Court has not considered whether: (i) Amazon could be held indirectly liable within the meaning of Article 14(1) of EU Directive 2000/31, as a “host” which – although aware of the illegal activity – did not prevent it; (ii) under Article 11 of EU Directive 2004/48, Coty could have acted against Amazon as an intermediary whose services are used by third parties to infringe its IP right. Therefore, it cannot be excluded that Amazon may be held (indirectly) liable for the infringements committed, including on the Marketplace: this aspect will have to be examined in detail on a case-by-case basis.

Practical tips

What can the owner (or licensee) of a trademark do if an unauthorized third party resells products with its trademark on an online platform?

  1. Gather as much evidence as possible of the infringement in progress: the proof of the infringement is one of the most problematic aspects of IP litigation.
  2. Contact a specialized lawyer to send a cease-and-desist letter to the unauthorized seller, ordering the removal of the products from the platform and asking the compensation for damages suffered.
  3. If the products are not removed from the marketplace, the trademark owner might take legal action to obtain the removal of the products and compensation for damages.
  4. In light of the judgment in question, the online platforms not playing an active role in the resale of goods remain not directly responsible for IP violations. Nevertheless, it is suggested to consider sending the cease-and-desist letter to them as well, in order to put more pressure on the unauthorised seller.
  5. The sending of the cease-and-desist letter also to the platform – especially in the event of several infringements – may also be useful to demonstrate its (indirect) liability for lack of vigilance, as seen in point 4) of the above list.

根据欧盟电子商务部门的调查，超过50%的互联网市场和36%的零售商提供数据给价格搜索引擎，如 Idealo，谷歌购物Google Shopping，或Shopzilla。相比之下，大约10%的经销商受到价格比较引擎禁令的影响（见委员会工作人员工作文件SWD（2017）154定稿，S.32图B.4和欧盟委员会第37页，电子商务部门调查的最后报告，第10页）。

不过，联邦法院最近确认，价格比较引擎的禁令是反竞争和无效的。在具体案例中，爱世克斯（跑鞋品牌名）通常禁止德国零售商支持在线分销中的价格搜索引擎：

“此外，经授权的…经销商不得…通过为这些价格比较引擎提供特定于应用程序的接口（“APIs”）来支持价格比较引擎的功能。”

此外，该协议还包含了对第三方平台广告的广泛禁止：爱世克斯禁止其授权经销商允许第三方在第三方网站上以任何形式使用爱世克斯的商标，以便直接引导客户访问被授权的爱世克斯经销商的网站。

爱世克斯的分销协议首先由德国竞争管理机构Bundeskartellamt作为试点案例进行调查(由于许多体育零售商对体育设备制造商的互联网转售限制提出了申诉，因此对阿迪达斯提起了另一起试点案件)。2015年，Bundeskartellamt裁定，爱世克斯对价格比较引擎的禁令违反了反垄断法，因为它将违反第101条(1) TFEU，sec.1 《禁止限制竞争法》。提出的理由是，这种禁令的主要目的是控制和限制价格竞争，而牺牲消费者的利益。这项决定首先得到了Düsseldorf高等地区法院的确认（2017年4月5日的裁决，案件号：VI-Kart 13/15(V)，见Legalmondo文章，点击这里）。

现在，联邦法院再次确认了这项裁决（2017年12月12日的决定，第KVZ 41/17号案件）。爱世克斯的裁决特别值得注意，因为它是德国法院继欧盟法院关于科蒂（全球最大的香水生产公司）的平台禁令作出裁决裁决之后作出的首项裁决（见Legalmondo的文章，点击这里）。因此，这是法院今后将如何处理互联网转售限制的第一个迹象。

因此，联邦法院指出，对价格搜索引擎的普遍禁止“至少”要限制向终端消费者的被动销售（第23款, 25款)–这种限制甚至将是这种禁令的预期目的。法院认为，根据《科蒂判决》（点击此出查看），一般平台禁令的可接受性并不意味着一般价格比较禁令的可接受性（第28款及其后款）。尤其是“限制组合”–即第三方平台价格比较引擎和广告宣传禁令–会产生影响。因为它没有确保潜在客户能够“实际进入”经销商网站（第30款） –在这种情况下，联邦最高法院允许提供这种“实质性准入”所需的充分或必要的条件；在这种情况下，一般价格比较引擎禁令仍可继续得到允许。

实用贴士：

  • 事实上，根据联邦最高法院的判决，Düsseldorf高级地区法院（Asics）和法兰克福高等地区法院（Deuter）已经指出以下区别可能适用于：
  • 一般价格比较引擎禁令是–根据联邦法院–反竞争的，因此通常是无效的–尽管如果不与广泛的广告禁令相结合，这些禁令仍然是允许的，这样就可以保证潜在的客户能够访问经销商网站。
  • 单独的价格比较引擎禁令和使用价格比较门户网站的其他较温和的限制/标准是允许的，例如关于产品插画或说明以及产品环境（例如要求经销商只能提供新产品）。

进一步了解细节: Rohrßen, Internetvertrieb: „Nicht Ideal(o)“ – Kombination aus Preissuchmaschinen-Verbot und Logo-Klausel, in: ZVertriebsR 2018, 118 ff.

  • 除此之外，制造商可以–在排他性分销网络内–禁止其分销商主动向制造商保留的或由制造商分配给另一分销商的客户提供在线广告，并指明所使用的语言。原则上，所有其他可能的质量标准也是允许的，只要他们和线下分销标准等效（因为“委员会认为，规定网上销售的标准与从实体店销售的标准总体上不等于硬核限制，从而劝阻指定经销商使用互联网接触更多和更多样化的客户的任何义务”，《纵向限制准则》，第56条）。

有关更多信息，请参见：

  • 有关实践现状的概述，包括示范合约条款：Rohrßen, Vertriebsvorgaben im E-Commerce 2018: Praxisübersichts und Folgen des “Coty”-Urteils des EuGH, in: GRUR-Prax 2018, 39-41 以及
  • 特别是关于平台禁令和可能起草分配协议: Rohrßen, Internetvertrieb von Markenartikeln: Zulässigkeit von Plattformverboten nach dem EuGH-Urteil Coty – Auswirkungen auf Fachhändler- bzw. Selektiv-, Exklusiv-, Franchise- und offene Vertriebsverträge –, in: DB 2018. 300-306.
  • 关于在互联网销售平台中嵌入的搜索功能中是否允许使用商标和公司徽标，见联邦法院最近于2018年2月15日发布的两项裁决（案件号：I ZR 138/16 re “Ortlieb” 和案件号 I ZR 201/1 re “gofit“).

地域封锁是一种歧视性做法，由于客户的国籍或其居住地或营业地，阻止客户（主要是网上客户）从另一欧盟成员国的网站获取和（或）购买产品或服务。

欧盟条例在2018年2月28日颁布的关于解决基于客户国籍、居住地或营业地在国内市场上的不合理的地域封锁和其他形式的歧视的欧盟第2018/302号条例将于2018年12月2日生效。

当前情况

欧盟委员会对欧盟的1万多个电子商务网站进行了“秘密购物”调查。地域封锁指数相当高！63%的网站不允许购物者从另一个欧盟国家购买商品（甚至包括86%的家用电器和79%的电子和计算机硬件）。

另一方面，当电子商务的价值和数量就全球来说，年复一年地大幅增长时，只有50%的欧洲客户从设在另一个欧盟成员国的网上商店购买产品，但这种现象只是在国内范围而非整个欧洲。

2017年6月23日，欧洲理事会要求切实执行数字单一市场战略的所有内容，包括跨界交付、消费者保护和禁止不当地域封锁。

现行法律框架的缺失

欧洲联盟指令（欧盟第2006/123/CE号指令）和TFUE第101条已经解决了基于国籍、地区或住所或营业地的歧视做法。

根据欧盟指令第20(2)条，欧盟成员国必须确保专业人员不因客户的居住地、营业所或国籍而区别对待（客观例外情况除外）。另一方面，关于纵向限制的欧盟竞争法(《欧盟运行条例》第101条和集体豁免条例及其指南)认为，对被动销售的限制是违反欧盟竞争规则的核心限制。然而，这两套规则(欧盟指令和竞争法框架)在实践中似乎并不完全有效。

在这方面，欧盟委员会在最近关于电子商务部门竞争调查的报告中表明，地域封锁尤其在欧洲电子商务部门内得到了大规模使用。

地域封锁条例的目的

地域封锁条例的目的是防止专业人员在处理跨国界电子商务交易时，基于国籍、居住地或客户营业地而实施的直接或间接歧视。

地域封锁条例的范围

新的条例将只适用于企业与最终用户或企业之间的网上销售。

新条例将适用于在欧盟内运作的网站或在欧盟以外运作但向设立在欧盟内的客户提供货物或服务的网站。

电子网站的管理新规是什么？

关于访问网站的问题

根据该条例，企业不得以与互联网用户的国籍、居住地或营业地有关的理由，通过使用技术措施来阻止或限制其进入网络接口。然而，只要客户明确同意，并且仍然可以轻松访问他们原先试图访问的网站版本，企业就有权将客的访问方向改变到他们试图访问的网站之外的另一个网站。

关于网站的销售条款和条件

该规则禁止企业在下列三种情况下，根据客户的国籍、居住地或营业地（特别是他们的IP地址），提供不同的一般条件来取得货物或服务：

提供送货服务的企业将售出的商品送达到另外的欧盟成员国交付（或在企业与客户共同商定的地点收取货物）的；

企业提供的电子化服务，如云、数据存储、主机服务等。（但不提供访问受版权保护的内容的服务，如流媒体或在线游戏服务）；

顾客获得的在各个国家均可运行的商务服务（如汽车租赁和旅馆住宿服务或体育或文化活动的票务服务）。

关于网站上的付款方式

该条例禁止企业以与客户的国籍、居住地或营业地、支付账户所在地或支付服务提供者的设立地有关的理由，对已接受的支付手段适用不同的支付条件（条件是必须符合认证要求，付款交易必须以企业接受的货币进行）。

这项规定对电子零售商有什么影响？

尽管在形式上被排除在该条例范围之外，但供应商与分销商或批发商之间的关系仍将受到该条例的影响，因为根据分销商之间的协议规定，分销商承诺不进行被动销售（例如，阻止或限制进入网站），由于与客户的国籍、居住地或营业地有关的原因“将自动无效”。

因此，地域封锁条例对分销商的影响是双重的：第一，在与客户（最终用户或用户企业）的关系中产生直接影响；第二，在其根据独家分销协议所承担的义务方面产生间接影响。

地域封锁条例必须与现行竞争法框架相协调，特别是与制定适用于网上销售的具体规则的纵向限制指导方针相协调。网上销售被比作被动销售。指导方针中提到4个实践中为了间接保证地方保护主义，在供应商和独家分销商同意的情况下被禁止的例子：

独家经销商应阻止另一地区的客户访问其网站，或自动将其转到供应商或其他经销商的网站，

如果买方的信用卡数据显示买方不是独家经销商的专有区域，独家经销商应终止网上销售。

限制独家分销商通过互联网销售的份额（但合同可规定按绝对值计算的最低线下目标，并规定与离线销售相比，网上销售保持一致）。

独家分销商对在互联网上销售的货物支付的价格，应高于对准备在离线销售的货物支付的价格。

制造商将必须决定是采用一个独一无二的欧洲门户网站报价还是多个地方商业报价，众所周知，每个范畴的客户端是有可能存在价格差异的。

事实上，新规定并没有强制电子零售商协调其价格政策，它们只是必须允许欧盟消费者自由和容易地访问其网站的任何版本。同样，该条例并没有规定电子零售商必须将产品运往欧洲各地，而只是允许欧盟消费者从他们想要的任何网站购买商品，并在必要时自行安排发货。

最后，在更为契约性的层面上，尚不十分清楚新的地域封锁规则如何直接或间接地影响适用于消费者合同的冲突法规则，根据罗马第1号规定(Rome I Regulation)，特别是在允许消费者在本网站所在国的外国网站上购买产品时（这意味着在消费者所在国无特定交货制度已建立。）

因此，B2C网站的一般条款和条件需要在营销和法律两方面进行审查和调整。

主要特点

2018年财政法案引入了一个于关于数字交易的新税种（即“网络税”）。

简介:

  • “网络税”适用于通过电子工具向居住在意大利的企业提供的服务所应缴纳的税；
  • 应税基数是交易价值；
  • 税率为 3%;
  • 当服务提供者每个自然年进行的相关交易超过3000起时，应缴纳网络税；
  • 该税由税务机关向服务接受者征收;
  • 该税种将从2019年1月1日起生效。

纳税人

网络税适用于相关服务（见下）的提供者，无论其是否在意大利居住，也不论交易在何地进行。

相关交易

应缴纳“网络税”的交易为通过电子途径向居住在意大利的企业（不包括一些小企业）提供服务的数字交易。

2018年4月30日经济和金融部长将做出法令(“实施条例”)指出“网络税”适用的服务范围。

基于本法的目的，通过电子方式提供的服务是：

  • 通过互联网或者电子网络提供的服务；
  • 服务的性质根本上是自动化的；
  • 人的参与程度被降至最低；
  • 如果不具有技术知识，服务无法被提供

应税基数与适用税率  

应税基数是交易价值，均相关服务的代价，扣除增值税。 适用税率是3%。

最低阙值

当提供者每个自然年进行的相关交易超过3000起时，应缴纳网络税。由此，如果相关交易低于上述阙值，不需要缴纳“网络税”。

适用机制 

除非服务提供商在发票（或者与发票一起发送的其他文件）中写出尚未超出最低限额，否则网络税从服务接受者的对价中预扣。

服务接受者应该在支付对价的次月的16日之前，向税务局缴纳网络税。

适用的方法以及纳税申报和付款义务，适用实施条例的规定。

生效日期

 虽然规定“网络税”的法律条款已经生效，但本”网络税”将自2019年1月1日起施行。

Long expected by manufacturers of brand-name products, brick-and-mortar-distributors, internet retailers and online platform providers as Amazon, eBay, Zalando, the Court of Justice of the European Union (CJEU) just decided yesterday on 6 December 2017 – its “Santa Claus decision” – that manufacturers may lawfully ban sales via third party platforms.

In a previous Legalmondo post we analysed this dispute (“the Coty case”) just resolved by the CJEU. According to its decision, such platform ban is not necessarily an unlawful restriction of competition under article 101 Treaty on the Functioning of the European Union (“TFEU”): The court has confirmed that selective distribution systems for luxury goods, which shall primarily preserve the goods’ luxury image may comply with European antitrust law.

More specifically, the court decided that platforms bans are lawful, namely that EU law allows restricting online sales in

“a contractual clause, such as that at issue in the present case, which prohibits authorised distributors of a selective distribution network of luxury goods designed, primarily, to preserve the luxury image of those goods from using, in a discernible manner, third-party platforms for internet sales of the goods in question, provided that the following conditions are met: (i) that clause has the objective of preserving the luxury image of the goods in question; (ii) it is laid down uniformly and not applied in a discriminatory fashion; and (iii) it is proportionate in the light of the objective pursued. It will be for the Oberlandesgericht to determine whether those conditions are met.”

(cf. the CJEU’s press release No. 132/2017).

This is the intermediary result of the Coty case as it is now up to the Higher Regional Court of Frankfurt to apply these requirements in the Coty case. Simply put, the question in that case is whether owners of luxury brands may generally or at least partially ban the resale via internet on third-party platforms. The Coty case’s history is quite interesting: The luxury perfume manufacturer Coty’s German subsidiary Coty Germany GmbH (“Coty”) set up a selective distribution network and its distributors may sell via the Internet – but banned to sell via third party platforms which are externally visible as such, i.e. Amazon, eBay, Zalando & Co. The court of first instance decided that such ban of sales via third party platforms was an unlawful restriction of competition. The court of second instance, however, did not see the answer that clear. Instead, the court requested the CJEU to give a preliminary ruling on how European antitrust rules have to be interpreted, namely article 101 TFEU and article 4 lit. b and c of the Vertical Block Exemptions Regulation or “VBER” (decision of 19.04.2016, for details, see the previous post “eCommerce: restrictions on distributors in Germany”). On 30 March 2017, the hearing took place before the CJEU. Coty defended its platform ban, arguing it aimed at protecting the luxury image of brands such as Marc Jacobs, Calvin Klein or Chloe. The distributor Parfümerie Akzente GmbH instead argued that established platforms such as Amazon and eBay already sold various brand-name products, e.g. of L’Oréal. Accordingly, there was no reason for Coty to ban the resale via these marketplaces. Another argument brought forward against the platform ban was that online platforms were important for small and medium-sized enterprises. Indications on how the court could decide appeared on 26 July 2017, with the Advocate General giving his opinion, concluding that platform bans appear possible, provided that the platform ban depends “on the nature of the product, whether it is determined in a uniform fashion and applied without distinction and whether it goes beyond what is necessary” (see the previous post “Distribution online – Platform bans in selective distribution (The Coty case continues)”).

 

Practical Conclusions:

  1. This “Santa Claus decision” of 6 December 2017 is highly important for all manufacturers of brand-name products, brick-and-mortar-distributors, internet retailers and online platform providers – because it clarifies that manufacturers of brand-name products may ban sales via third party platforms (Amazon, eBay, Zalando and Co.) to ensure the same level of quality of distribution throughout all distribution channels, offline and online.
  2. As a glimpse back in advance: the district court of Amsterdam already on 4 October 2017 decided that Nike’s ban on its selective distributors not to use online platforms as Amazon was a lawful distribution criterion to safeguard Nike’s luxury brand image (case of Nike European Operations Netherlands B.V. vs. the Italy-based retailer Action Sport Soc. Coop, A.R.L., ref. no. C/13/615474 / HA ZA 16-959). More details soon!
  3. The general ban to use price comparison tools as stipulated by the sporting goods manufacturer Asics in its “Distribution System 1.0“ shall be anti-competitive – according to the Bundeskartellamt, as confirmed by the Higher Regional Court of Düsseldorf on 5 April 2017. The last word is, however, still far from being said – see the post “Ban of Price Comparison Tools anti-competitive & void?”. It will be interesting to see how the Coty case’s outcome will influence how to see such bans on price comparison tools.
  4. For further trends in distribution online, see the EU Commission’s Final report on the E-commerce Sector Inquiry and details in the Staff Working Document, „Final report on the E-commerce Sector Inquiry“.
  5. For details on distribution networks and distribution online, please see my articles

 

The Coty case is extremely relevant to distribution in Europe because more than 70% of the world’s luxury items are sold here, many of them online now. For further implications on existing and future distribution networks and the respective agreements, stay tuned: we will elaborate this argument on Legalmondo!

In this post we will briefly outline some legal aspects related to e-commerce in Iran, starting from the definition of the average Iranian user and main characteristics and advantages of e-commerce in the Islamic Republic, which is attracting several foreign investors.

We will then analyze the requirements for the issuance of online business licenses in Iran, which is mandatory in order to open an e-shop. Finally we will take a look at some successful examples of online business in Iran.

The average Iranian user

Some statistics regarding Iranian users active in the virtual space are useful for understanding the size of the Iranian market, and why it is attracting several investors.

According to the “Internet Data and Statistics”, Iran is the thirteenth country for number of internet users, as 57 million of Iranian (on 83 million of Iran’s population) have access to internet (approximately the 68% of the population), but Government sources believe these numbers are  underestimated.

What matters for the purpose of this analysis, however, is that approximatively the 58% of the internet users search on the Internet is about information on goods and services and that – until the end of Azar 1394 (December 2015) – the average internet users are male (58%) and young (47% between 20 and 29 years old).

In addition, the 42% of the Iranian internet users are involved in electronic commerce and the 13% use the e-banking services.

Online Business Licenses in Iran

Whether carried out in the traditional way or electronically, all the businesses need a business-license to operate on the Iranian market. The most important law governing  is the Union System Act 1971, amended in 1980, 2003 and in 2013, which provides that the business license is issued by the competent union or legal authority.

E-commerce is no exception, therefore all those who intend to sell goods or provide services using the virtual space must acquire a business license.

On February 19th, 2017 the Iranian Government issued an Executive Regulation in regard to the Issuance of License and Supervision on Businesses in Virtual Space and Network Marketing, dividing the activities in virtual space into two categories:

  1. Virtual Business;
  2. Network Marketing.

According to Paragraph 1 in Article 1, Virtual Business is a business established by any natural or legal person in order to provide products (goods or services) directly or indirectly on a wholesale or retail basis, to wholesalers, retailers and consumers through telecommunication means such as websites and digital software (applications).

According to Paragraph 2 of Article 1, Network Marketing is a method for selling products based on which the Network Marketing company uses its website to organize the sellers in order to sell their products directly to consumers in a place far from the regular business location. Through this method, each seller can introduce another marketer as it subset and create a multi-product sales group in order to increase sales.

The competent authority for issuance of licenses in this regard is the National Union. Therefore, any person who intends to acquire a license in order to have its activities carried out online, must apply on the website of Center for Development of Electronic Commerce (an organ of the Ministry of Industry, Mine and Commerce, hereinafter: “CDEC” – www.enamad.ir) in order to acquire the Reliance Symbol, which is a symbol necessary to certify the identity and competence of online activities.

Requirements for the Online Business License

Article 3  of the Executive Regulation on Issuance of License and Supervision on Businesses in Virtual Space and Network Marketing, which governs the Issuance of Online Business Licenses in Iran, provides that business licenses shall be issued according to the following procedure:

  1. Establishment of the virtual business conforming to the checklists provided by the CDEC.
  2. Registration of application in E-Namad website (then the CDEC automatically submits the application to the unions’ website).
  3. Upload of the required documents, which we will list below.
  4. Issuance and submission of the license (after verifying the uploaded documents and the original copies thereof) to the applicant within 15 days and submission of the license information to E-Namad website.
  5. Grant of Electronic Reliance Symbol concurrent with issuance of the license.

Furthermore, the said Regulation specifies the required documents for issuance of business license, as follows:

  1. Office or legal domicile address of the applicant;
  2. Negative criminal record from the Police;
  3. Certificate of the relevant Tax Organization regarding tax compliance;
  4. Certificate for attendance in educational courses of commerce and business;
  5. Confirmation of specialized features regarding virtual business issued by the CDED;
  6. Photocopy of ID-card/Company-Registration number, plus passport/work-permit for foreigners;
  7. Photocopy of Military Service Termination Card or Permanent or Medical Exemption Card for men under 50 or a Student Certificate.

In addition to those, the Regulation provides some other documents for particular sectors, so it is advisable to contact an Iranian expert in the matter to verify the compliance with all applicable regulations. For instance, the Cultural Heritage, Handicrafts and Tourism Organization of Iran has set out some specific criteria for travel and tourism activities in the virtual space, so travel agency services, accommodation centers, private entities and other tourism services must follow a special procedure to render their services on virtual space.

Successful Examples of Iranian Start-ups

In order to become familiar with this sector, hereinafter we would like to report some inspirational examples of investments.

  1. Snapp

Snapp is an Iranian ride hailing company which renders its services online. The Snapp application automatically connects the users to the nearest driver and shows the driver the user’s location. Afterwards, the nearest ready driver will pick up the users from their location, and Snapp calculates the price beforehand. This price is normally lower than the Taxi Agency Unions prices and can be received either in cash or via online payment or credit card.

  1. Digikala

Digikala is the name of one of the biggest e-marketplaces in Iran. Cellphones, laptops and computers, digital cameras, office appliances, automobiles, watches, home appliances, instruments, jewelry, toys, clothes and books are some of the items sold on this website. One of the features of this website is the detailed and comprehensive reviews of different types of digital goods which can be a reliable source for purchasers.

  1. Pintapin

Pintapin is a comprehensive tool for rendering travel services online. Accommodation services are listed in Pintapin and users can book online their desired location. It is also possible to submit the information regarding your destination, duration of stay and number of companions in order to receive suitable suggestions from Pintapin.

  1. Bamilo

Bamilo is probably the most important Marketplace businesses in Iran. It started its activity in 2014 and is now among the most viewed websites in Iran. Based on the Amazon-model, the online store is considered as the main Iranian middleman between suppliers and consumers.

  1. Eskano

Eskano is a smart system for searching real estate in Iran which is performed under international standards. With its huge database of transferable real estates divided between several Iranian cities, Eskano facilitates the sale and lease process, also with the possibility of setting up appointments directly through the website.

The author of this post is Mohammad Rahmani.

The Court of Justice of the European Union (“CJEU”) has issued a new ruling on the international scope of the Commercial Agency Directive (86/653/EEC of 18 December 1986). The new decision is in line with the rulings of

  1. the CJEU in the Ingmar case (decision of 9 November 2000, C-381/98, goodwill indemnity mandatory where the agent acts within the EU) and Unamar (decision of 17 October 2013, C-184/12, as to whether national agency law is mandatory where exceeding the Commercial Agency Directive’s minimum protection) and
  2. the German Federal Supreme Court of 5 September 2012 (German agency law as mandatory law vis-à-vis suppliers in third countries with choice-of-court clause).

The question

Now, the CJEU had to decide whether a commercial agent acting in Turkey for a supplier based in Belgium could claim goodwill indemnity on the basis of the Commercial Agency Directive. More specifically, the question was whether the territorial scope of the Commercial Agency Directive was given where the commercial agent acts in a third country and the supplier within the EU – hence opposite to the Ingmar case.

The facts

According to the agency contract, Belgian law applied and the courts in Gent (Belgium) should be competent. Belgian law, transposing the Commercial Agency Directive, provides for a goodwill indemnity claim at termination of the contract (and, additionally, compensation for damages). However, the referring court considered that the Belgian Law on Commercial Agents of 1995 was self-restraining and would apply, in accordance with its Art. 27, only if the commercial agent acted in Belgium. Otherwise, general Belgian law would apply.

The decision

The CJEU decided that the parties may derogate from the Commercial Agency Directive if the agent acts in a third country (i.e. outside the EU). This has here been the case since the agent acted in Turkey.

The decision is particularly noteworthy because it – rather by the way – continues the CJEU’s Ingmar ruling under the Rome I Regulation (I.). In addition, it indirectly confirms sec. 92c of the German Commercial Code (II.) – which allows the parties to a commercial agent agreement governed by German law to deviate from the generally mandatory agency law if the commercial agent is acting outside the European Economic Area (“EEA”). Finally, it provides legal certainty for distribution outside the EEA and illustrates what may change after a Brexit as regards commercial agents acting in the United Kingdom (III.) – if the EU and the United Kingdom do not set up intertemporal arrangements for transition.

For details, please see the article by Benedikt Rohrßen, Zeitschrift für Vertriebsrecht 2017, 186 et seq. (“Ingmar reloaded – Handelsvertreter-Ausgleich bei umgekehrter Ingmar-Konstellation nicht international zwingend”).

Benedikt Rohrssen

Practice areas

  • 代理中介
  • 分销协议
  • 电子商务
  • 特许经营
  • 投资
Contact Benedikt

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    When is Amazon liable for trademark infringements on its Marketplace?

    7 4 月 2020

    • 欧洲
    • 意大利
    • 电子商务
    • 知识产权

    Summary: Since 12 July 2020, new rules apply for platform service providers and search engine operators – irrespective of whether they are established in the EU or not. The transition period has run out. This article provides checklists for platform service providers and search engine operators on how to adapt their services to the Regulation (EU) 2019/1150 on the promotion of fairness and transparency for commercial users of online intermediation services – the P2B Regulation.

    The P2B Regulation applies to platform service providers and search engine operators, wherever established, provided only two conditions are met:

    (i) the commercial users (for online intermediation services) or the users with a company website (for online search engines) are established in the EU; and

    (ii) the users offer their goods/services to consumers located in the EU for at least part of the transaction.

    Accordingly, there is a need for adaption for:

    • Online intermediation services, e.g. online marketplaces, app stores, hotel and other travel booking portals, social media, and
    • Online search engines.

    The P2B Regulation applies to platforms in the P2B2C business in the following constellation (i.e. pure B2B platforms are exempt):

    Provider -> Business -> Consumer

    The article follows up on the introduction to the P2B Regulation here and the detailed analysis of mediation as method of dispute resolution here.

     Checklist how to adapt the general terms and conditions of platform services

    Online intermediation services must adapt their general terms and conditions – defined as (i) conditions / provisions that regulate the contractual relationship between the provider of online intermediation services and their business users and (ii) are unilaterally determined by the provider of online intermediation services.

    The checklist shows the new main requirements to be observed in the general terms and conditions (“GTC”):

    1. Draft them in plain and intelligible language (Article 3.1 a)
    2. Make them easily available at any time (also before conclusion of contract) (Article 3.1 b)
    3. Inform on reasons for suspension / termination (Article 3.1 c)
    4. Inform on additional sales channels or partner programs (Article 3.1 d)
    5. Inform on the effects of the GTC on the IP rights of users (Article 3.1 e)
    6. Inform on (any!) changes to the GTC on a durable medium, user has the right of termination (Article 3.2)
    7. Inform on main parameters and relative importance in the ranking (incl. possible influence of remuneration), without algorithms or business secrets (Article 5.1, 5.3, 5.5)
    8. Inform on the type of any ancillary goods/services offered and any entitlement/condition that users offer their own goods/services (Article 6)
    9. Inform on possible differentiated treatment of goods / services of the provider or individual users towards other users (Article 7.1, 7.2, 7.3)
    10. No retroactive changes to the GTC (Article 8a)
    11. Inform on conditions under which users can terminate contract (Article 8b)
    12. Inform on available or non-available technical and contractual access to information that the Service maintains after contract termination (Article 8c)
    13. Inform on technical and contractual access or lack thereof for users to any data made available or generated by them or by consumers during the use of services (Article 9)
    14. Inform on reasons for possible restrictions on users to offer their goods/services elsewhere under other conditions (“best price clause”); reasons must also be made easily available to the public (Article 10)
    15. Inform on access to the internal complaint-handling system (Article 11.3)
    16. Indicate at least two mediators for any out-of-court settlement of disputes (Article 12)

    These requirements – apart from the clear, understandable language of the GTC, their availability and the fundamental ineffectiveness of retroactive adjustments to the GTC – clearly go beyond what e.g. the already strict German law on general terms and conditions requires.

    Checklist how to adapt the design of platform services and search engines

    In addition, online intermediation services and online search engines must adapt their design and, among other things, introduce internal complaint-handling. The checklist shows the main design requirements for:

    a) Online intermediation services

    1. Make identity of commercial user clearly visible (Article 3.5)
    2. State reasons for suspension / limitation / termination of services (Article 4.1, 4.2)
    3. Explain possible differentiated treatment of goods / services of providers themselves or users in relation to other users (Article 7.1, 7.2, 7.3), see above
    4. Set an internal complaint handling system, with publicly available info, annual updates (Article 11, 4.3)

    b) Online search engines

    1. Explain the ranking’s main parameters and their relative importance, public, easily available, always up to date (incl. possible influence of remuneration), without algorithms or trade secrets (Article 5.2, 5.3, 5.5)
    2. If ranking changes or delistings occur due to notification by third parties: offer to inspect such notification (Article 5.4)
    3. Explain possible differentiated treatment of goods / services of providers themselves or users in relation to other users (Article 7.1, 7.2, 7.3)

    The European Commission will provide guidelines regarding the ranking rules in Article 5, as announced in the P2B Regulation – see the overview here. At the same time, providers of online intermediation services and online search engines shall draw up codes of conduct together with their users.

    Practical Tips

    • The Regulation significantly affects contractual freedom as it obliges platform services to adapt their general terms and conditions.
    • The Regulation is to be enforced by “representative organisations” or associations and public bodies, with the EU Member States ensuring adequate and effective enforcement. The European Commission will monitor the impact of the Regulation in practice and evaluate it for the first time on 13.01.2022 (and every three years thereafter).
    • The P2B Regulation may affect distribution relationships, in particular platforms as distribution intermediaries. Under German distribution law, platforms and other Internet intermediation services acting as authorised distributors may be entitled to a goodwill indemnity at termination (details here) if they disclose their distribution channels on the basis of corresponding platform general terms and conditions, as the Regulation does not require, but at least allows to do (see also: Rohrßen, ZVertriebsR 2019, 341, 344–346). In addition, there are numerous overlaps with antitrust, competition and data protection law.

    Summary – What can the owner (or licensee) of a trademark do if an unauthorized third party resells products with its trademark on an online platform? This issue was addressed in the judgment of C-567/18 of 2 April 2020, in which the Court of Justice of the European Union confirmed that platforms (Amazon Marketplace, in this case) storing goods which infringe trademark rights are not liable for such infringement, unless the platform puts them on the market or is aware of the infringement. Conversely, platforms (such as Amazon Retail) that contribute to the distribution or resell the products themselves may be liable.

    Background

    Coty – a German company, distributor of perfumes, holding a licence for the EU trademark “Davidoff” – noted that third-party sellers were offering on Amazon Marketplace perfumes bearing the “Davidoff Hot Water” brand, which had been put in the EU market without its consent.

    After reaching an agreement with one of the sellers, Coty sued Amazon in order to prevent it from storing and shipping those perfumes unless they were placed on the EU market with Coty’s consent. Both the Court of First Instance and the Court of Appeal rejected Coty’s request, which brought an appeal before the German Court of Cassation, which in turn referred the matter to the Court of Justice of the EU.

    What is the Exhaustion of the rights conferred by a trademark

    The principle of exhaustion is envisaged by EU law, according to which, once a good is put on the EU market, the proprietor of the trademark right on that specific good can no longer limit its use by third parties.

    This principle is effective only if the entry of the good (the reference is to the individual product) on the market is done directly by the right holder, or with its consent (e.g. through an operator holding a licence).

    On the contrary, if the goods are placed on the market by third parties without the consent of the proprietor, the latter may – by exercising the trademark rights established by art. 9, par. 3 of EU Regulation 2017/1001 – prohibit the use of the trademark for the marketing of the products.

    By the legal proceedings which ended before the Court of Justice of the EU, Coty sought to enforce that right also against Amazon, considering it to be a user of the trademark, and therefore liable for its infringement.

    What is the role of Amazon?

    The solution of the case revolves around the role of the web platform.

    Although Amazon provides users with a unique search engine, it hosts two radically different sales channels. Through the Amazon Retail channel, the customer buys products directly from the Amazon company, which operates as a reseller of products previously purchased from third party suppliers.

    The Amazon Marketplace, on the other hand, displays products owned by third-party vendors, so purchase agreements are concluded between the end customer and the vendor. Amazon gets a commission on these transactions, while the vendor assumes the responsibility for the sale and can manage the prices of the products independently.

    According to the German courts which rejected Coty’s claims in the first and second instance, Amazon Marketplace essentially acts as a depository, without offering the goods for sale or putting them on the market.

    Coty, vice versa, argues that Amazon Marketplace, by offering various marketing-services (including: communication with potential customers in order to sell the products; provision of the platform through which customers conclude the contract; and consistent promotion of the products, both on its website and through advertisements on Google), can be considered as a “user” of the trademark, within the meaning of Article 9, paragraph 3 of EU Regulation 2017/1001.

    The decision of the Court of Justice of the European Union

    Advocate General Campos Sanchez-Bordona, in the opinion delivered on 28 November 2019, had suggested to the Court to distinguish between: the mere depositaries of the goods, not to be considered as “users” of the trademark for the purposes of EU Regulation 2017/1001; and those who – in addition to providing the deposit service – actively participate in the distribution of the goods. These latter, in the light of art. 9, par. 3, letter b) of EU Regulation 2017/1001, should be considered as “users” of the trademark, and therefore directly responsible in case of infringements.

    The Bundesgerichtshof (Federal Court of Justice of Germany), however, had already partially answered the question when it referred the matter to the European Court, stating that Amazon Marketplace “merely stored the goods concerned, without offering them for sale or putting them on the market”, both operations carried out solely by the vendor.

    The EU Court of Justice ruled the case on the basis of some precedents, in which it had already stated that:

    • The expression “using” involves at the very least, the use of the sign in the commercial communication. A person may thus allow its clients to use signs which are identical or similar to trademarks without itself using those signs (see Google vs Louis Vuitton, Joined Cases C-236/08 to C-238/08, par. 56).
    • With regard to e-commerce platforms, the use of the sign identical or similar to a trademark is made by the sellers, and not by the platform operator (see L’Oréal vs eBay, C‑324/09, par. 103).
    • The service provider who simply performs a technical part of the production process cannot be qualified as a “user” of any signs on the final products. (see Frisdranken vs Red Bull, C‑119/10, par. 30. Frisdranken is an undertaking whose main activity is filling cans, supplied by a third party, already bearing signs similar to Redbull’s registered trademarks).

    On the basis of that case-law and the qualification of Amazon Marketplace provided by the referring court, the European Court has ruled that a company which, on behalf of a third party, stores goods which infringe trademark rights, if it is not aware of that infringement and does not offer them for sale or place them on the market, is not making “use” of the trademark and, therefore, is not liable to the proprietor of the rights to that trademark.

    Conclusion

    After Coty had previously been the subject of a historic ruling on the matter (C-230/16 – link to the Legalmondo previous post), in this case the Court of Justice decision confirmed the status quo, but left the door open for change in the near future.

    A few considerations on the judgement, before some practical tips:

    • The Court did not define in positive terms the criteria for assessing whether an online platform performs sufficient activity to be considered as a user of the sign (and therefore liable for any infringement of the registered trademark). This choice is probably dictated by the fact that the criteria laid down could have been applied (including to the various companies belonging to the Amazon group) in a non-homogeneous manner by the various Member States’ national courts, thus jeopardising the uniform application of European law.
    • If the Court of Justice had decided the case the other way around, the ruling would have had a disruptive impact not only on Amazon’s Marketplace, but on all online operators, because it would have made them directly responsible for infringements of IP rights by third parties.
    • If the perfumes in question had been sold through Amazon Retail, there would have been no doubt about Amazon’s responsibility: through this channel, sales are concluded directly between Amazon and the end customer.
    • The Court has not considered whether: (i) Amazon could be held indirectly liable within the meaning of Article 14(1) of EU Directive 2000/31, as a “host” which – although aware of the illegal activity – did not prevent it; (ii) under Article 11 of EU Directive 2004/48, Coty could have acted against Amazon as an intermediary whose services are used by third parties to infringe its IP right. Therefore, it cannot be excluded that Amazon may be held (indirectly) liable for the infringements committed, including on the Marketplace: this aspect will have to be examined in detail on a case-by-case basis.

    Practical tips

    What can the owner (or licensee) of a trademark do if an unauthorized third party resells products with its trademark on an online platform?

    1. Gather as much evidence as possible of the infringement in progress: the proof of the infringement is one of the most problematic aspects of IP litigation.
    2. Contact a specialized lawyer to send a cease-and-desist letter to the unauthorized seller, ordering the removal of the products from the platform and asking the compensation for damages suffered.
    3. If the products are not removed from the marketplace, the trademark owner might take legal action to obtain the removal of the products and compensation for damages.
    4. In light of the judgment in question, the online platforms not playing an active role in the resale of goods remain not directly responsible for IP violations. Nevertheless, it is suggested to consider sending the cease-and-desist letter to them as well, in order to put more pressure on the unauthorised seller.
    5. The sending of the cease-and-desist letter also to the platform – especially in the event of several infringements – may also be useful to demonstrate its (indirect) liability for lack of vigilance, as seen in point 4) of the above list.

    根据欧盟电子商务部门的调查，超过50%的互联网市场和36%的零售商提供数据给价格搜索引擎，如 Idealo，谷歌购物Google Shopping，或Shopzilla。相比之下，大约10%的经销商受到价格比较引擎禁令的影响（见委员会工作人员工作文件SWD（2017）154定稿，S.32图B.4和欧盟委员会第37页，电子商务部门调查的最后报告，第10页）。

    不过，联邦法院最近确认，价格比较引擎的禁令是反竞争和无效的。在具体案例中，爱世克斯（跑鞋品牌名）通常禁止德国零售商支持在线分销中的价格搜索引擎：

    “此外，经授权的…经销商不得…通过为这些价格比较引擎提供特定于应用程序的接口（“APIs”）来支持价格比较引擎的功能。”

    此外，该协议还包含了对第三方平台广告的广泛禁止：爱世克斯禁止其授权经销商允许第三方在第三方网站上以任何形式使用爱世克斯的商标，以便直接引导客户访问被授权的爱世克斯经销商的网站。

    爱世克斯的分销协议首先由德国竞争管理机构Bundeskartellamt作为试点案例进行调查(由于许多体育零售商对体育设备制造商的互联网转售限制提出了申诉，因此对阿迪达斯提起了另一起试点案件)。2015年，Bundeskartellamt裁定，爱世克斯对价格比较引擎的禁令违反了反垄断法，因为它将违反第101条(1) TFEU，sec.1 《禁止限制竞争法》。提出的理由是，这种禁令的主要目的是控制和限制价格竞争，而牺牲消费者的利益。这项决定首先得到了Düsseldorf高等地区法院的确认（2017年4月5日的裁决，案件号：VI-Kart 13/15(V)，见Legalmondo文章，点击这里）。

    现在，联邦法院再次确认了这项裁决（2017年12月12日的决定，第KVZ 41/17号案件）。爱世克斯的裁决特别值得注意，因为它是德国法院继欧盟法院关于科蒂（全球最大的香水生产公司）的平台禁令作出裁决裁决之后作出的首项裁决（见Legalmondo的文章，点击这里）。因此，这是法院今后将如何处理互联网转售限制的第一个迹象。

    因此，联邦法院指出，对价格搜索引擎的普遍禁止“至少”要限制向终端消费者的被动销售（第23款, 25款)–这种限制甚至将是这种禁令的预期目的。法院认为，根据《科蒂判决》（点击此出查看），一般平台禁令的可接受性并不意味着一般价格比较禁令的可接受性（第28款及其后款）。尤其是“限制组合”–即第三方平台价格比较引擎和广告宣传禁令–会产生影响。因为它没有确保潜在客户能够“实际进入”经销商网站（第30款） –在这种情况下，联邦最高法院允许提供这种“实质性准入”所需的充分或必要的条件；在这种情况下，一般价格比较引擎禁令仍可继续得到允许。

    实用贴士：

    • 事实上，根据联邦最高法院的判决，Düsseldorf高级地区法院（Asics）和法兰克福高等地区法院（Deuter）已经指出以下区别可能适用于：
    • 一般价格比较引擎禁令是–根据联邦法院–反竞争的，因此通常是无效的–尽管如果不与广泛的广告禁令相结合，这些禁令仍然是允许的，这样就可以保证潜在的客户能够访问经销商网站。
    • 单独的价格比较引擎禁令和使用价格比较门户网站的其他较温和的限制/标准是允许的，例如关于产品插画或说明以及产品环境（例如要求经销商只能提供新产品）。

    进一步了解细节: Rohrßen, Internetvertrieb: „Nicht Ideal(o)“ – Kombination aus Preissuchmaschinen-Verbot und Logo-Klausel, in: ZVertriebsR 2018, 118 ff.

    • 除此之外，制造商可以–在排他性分销网络内–禁止其分销商主动向制造商保留的或由制造商分配给另一分销商的客户提供在线广告，并指明所使用的语言。原则上，所有其他可能的质量标准也是允许的，只要他们和线下分销标准等效（因为“委员会认为，规定网上销售的标准与从实体店销售的标准总体上不等于硬核限制，从而劝阻指定经销商使用互联网接触更多和更多样化的客户的任何义务”，《纵向限制准则》，第56条）。

    有关更多信息，请参见：

    • 有关实践现状的概述，包括示范合约条款：Rohrßen, Vertriebsvorgaben im E-Commerce 2018: Praxisübersichts und Folgen des “Coty”-Urteils des EuGH, in: GRUR-Prax 2018, 39-41 以及
    • 特别是关于平台禁令和可能起草分配协议: Rohrßen, Internetvertrieb von Markenartikeln: Zulässigkeit von Plattformverboten nach dem EuGH-Urteil Coty – Auswirkungen auf Fachhändler- bzw. Selektiv-, Exklusiv-, Franchise- und offene Vertriebsverträge –, in: DB 2018. 300-306.
    • 关于在互联网销售平台中嵌入的搜索功能中是否允许使用商标和公司徽标，见联邦法院最近于2018年2月15日发布的两项裁决（案件号：I ZR 138/16 re “Ortlieb” 和案件号 I ZR 201/1 re “gofit“).

    地域封锁是一种歧视性做法，由于客户的国籍或其居住地或营业地，阻止客户（主要是网上客户）从另一欧盟成员国的网站获取和（或）购买产品或服务。

    欧盟条例在2018年2月28日颁布的关于解决基于客户国籍、居住地或营业地在国内市场上的不合理的地域封锁和其他形式的歧视的欧盟第2018/302号条例将于2018年12月2日生效。

    当前情况

    欧盟委员会对欧盟的1万多个电子商务网站进行了“秘密购物”调查。地域封锁指数相当高！63%的网站不允许购物者从另一个欧盟国家购买商品（甚至包括86%的家用电器和79%的电子和计算机硬件）。

    另一方面，当电子商务的价值和数量就全球来说，年复一年地大幅增长时，只有50%的欧洲客户从设在另一个欧盟成员国的网上商店购买产品，但这种现象只是在国内范围而非整个欧洲。

    2017年6月23日，欧洲理事会要求切实执行数字单一市场战略的所有内容，包括跨界交付、消费者保护和禁止不当地域封锁。

    现行法律框架的缺失

    欧洲联盟指令（欧盟第2006/123/CE号指令）和TFUE第101条已经解决了基于国籍、地区或住所或营业地的歧视做法。

    根据欧盟指令第20(2)条，欧盟成员国必须确保专业人员不因客户的居住地、营业所或国籍而区别对待（客观例外情况除外）。另一方面，关于纵向限制的欧盟竞争法(《欧盟运行条例》第101条和集体豁免条例及其指南)认为，对被动销售的限制是违反欧盟竞争规则的核心限制。然而，这两套规则(欧盟指令和竞争法框架)在实践中似乎并不完全有效。

    在这方面，欧盟委员会在最近关于电子商务部门竞争调查的报告中表明，地域封锁尤其在欧洲电子商务部门内得到了大规模使用。

    地域封锁条例的目的

    地域封锁条例的目的是防止专业人员在处理跨国界电子商务交易时，基于国籍、居住地或客户营业地而实施的直接或间接歧视。

    地域封锁条例的范围

    新的条例将只适用于企业与最终用户或企业之间的网上销售。

    新条例将适用于在欧盟内运作的网站或在欧盟以外运作但向设立在欧盟内的客户提供货物或服务的网站。

    电子网站的管理新规是什么？

    关于访问网站的问题

    根据该条例，企业不得以与互联网用户的国籍、居住地或营业地有关的理由，通过使用技术措施来阻止或限制其进入网络接口。然而，只要客户明确同意，并且仍然可以轻松访问他们原先试图访问的网站版本，企业就有权将客的访问方向改变到他们试图访问的网站之外的另一个网站。

    关于网站的销售条款和条件

    该规则禁止企业在下列三种情况下，根据客户的国籍、居住地或营业地（特别是他们的IP地址），提供不同的一般条件来取得货物或服务：

    提供送货服务的企业将售出的商品送达到另外的欧盟成员国交付（或在企业与客户共同商定的地点收取货物）的；

    企业提供的电子化服务，如云、数据存储、主机服务等。（但不提供访问受版权保护的内容的服务，如流媒体或在线游戏服务）；

    顾客获得的在各个国家均可运行的商务服务（如汽车租赁和旅馆住宿服务或体育或文化活动的票务服务）。

    关于网站上的付款方式

    该条例禁止企业以与客户的国籍、居住地或营业地、支付账户所在地或支付服务提供者的设立地有关的理由，对已接受的支付手段适用不同的支付条件（条件是必须符合认证要求，付款交易必须以企业接受的货币进行）。

    这项规定对电子零售商有什么影响？

    尽管在形式上被排除在该条例范围之外，但供应商与分销商或批发商之间的关系仍将受到该条例的影响，因为根据分销商之间的协议规定，分销商承诺不进行被动销售（例如，阻止或限制进入网站），由于与客户的国籍、居住地或营业地有关的原因“将自动无效”。

    因此，地域封锁条例对分销商的影响是双重的：第一，在与客户（最终用户或用户企业）的关系中产生直接影响；第二，在其根据独家分销协议所承担的义务方面产生间接影响。

    地域封锁条例必须与现行竞争法框架相协调，特别是与制定适用于网上销售的具体规则的纵向限制指导方针相协调。网上销售被比作被动销售。指导方针中提到4个实践中为了间接保证地方保护主义，在供应商和独家分销商同意的情况下被禁止的例子：

    独家经销商应阻止另一地区的客户访问其网站，或自动将其转到供应商或其他经销商的网站，

    如果买方的信用卡数据显示买方不是独家经销商的专有区域，独家经销商应终止网上销售。

    限制独家分销商通过互联网销售的份额（但合同可规定按绝对值计算的最低线下目标，并规定与离线销售相比，网上销售保持一致）。

    独家分销商对在互联网上销售的货物支付的价格，应高于对准备在离线销售的货物支付的价格。

    制造商将必须决定是采用一个独一无二的欧洲门户网站报价还是多个地方商业报价，众所周知，每个范畴的客户端是有可能存在价格差异的。

    事实上，新规定并没有强制电子零售商协调其价格政策，它们只是必须允许欧盟消费者自由和容易地访问其网站的任何版本。同样，该条例并没有规定电子零售商必须将产品运往欧洲各地，而只是允许欧盟消费者从他们想要的任何网站购买商品，并在必要时自行安排发货。

    最后，在更为契约性的层面上，尚不十分清楚新的地域封锁规则如何直接或间接地影响适用于消费者合同的冲突法规则，根据罗马第1号规定(Rome I Regulation)，特别是在允许消费者在本网站所在国的外国网站上购买产品时（这意味着在消费者所在国无特定交货制度已建立。）

    因此，B2C网站的一般条款和条件需要在营销和法律两方面进行审查和调整。

    主要特点

    2018年财政法案引入了一个于关于数字交易的新税种（即“网络税”）。

    简介:

    • “网络税”适用于通过电子工具向居住在意大利的企业提供的服务所应缴纳的税；
    • 应税基数是交易价值；
    • 税率为 3%;
    • 当服务提供者每个自然年进行的相关交易超过3000起时，应缴纳网络税；
    • 该税由税务机关向服务接受者征收;
    • 该税种将从2019年1月1日起生效。

    纳税人

    网络税适用于相关服务（见下）的提供者，无论其是否在意大利居住，也不论交易在何地进行。

    相关交易

    应缴纳“网络税”的交易为通过电子途径向居住在意大利的企业（不包括一些小企业）提供服务的数字交易。

    2018年4月30日经济和金融部长将做出法令(“实施条例”)指出“网络税”适用的服务范围。

    基于本法的目的，通过电子方式提供的服务是：

    • 通过互联网或者电子网络提供的服务；
    • 服务的性质根本上是自动化的；
    • 人的参与程度被降至最低；
    • 如果不具有技术知识，服务无法被提供

    应税基数与适用税率  

    应税基数是交易价值，均相关服务的代价，扣除增值税。 适用税率是3%。

    最低阙值

    当提供者每个自然年进行的相关交易超过3000起时，应缴纳网络税。由此，如果相关交易低于上述阙值，不需要缴纳“网络税”。

    适用机制 

    除非服务提供商在发票（或者与发票一起发送的其他文件）中写出尚未超出最低限额，否则网络税从服务接受者的对价中预扣。

    服务接受者应该在支付对价的次月的16日之前，向税务局缴纳网络税。

    适用的方法以及纳税申报和付款义务，适用实施条例的规定。

    生效日期

     虽然规定“网络税”的法律条款已经生效，但本”网络税”将自2019年1月1日起施行。

    Long expected by manufacturers of brand-name products, brick-and-mortar-distributors, internet retailers and online platform providers as Amazon, eBay, Zalando, the Court of Justice of the European Union (CJEU) just decided yesterday on 6 December 2017 – its “Santa Claus decision” – that manufacturers may lawfully ban sales via third party platforms.

    In a previous Legalmondo post we analysed this dispute (“the Coty case”) just resolved by the CJEU. According to its decision, such platform ban is not necessarily an unlawful restriction of competition under article 101 Treaty on the Functioning of the European Union (“TFEU”): The court has confirmed that selective distribution systems for luxury goods, which shall primarily preserve the goods’ luxury image may comply with European antitrust law.

    More specifically, the court decided that platforms bans are lawful, namely that EU law allows restricting online sales in

    “a contractual clause, such as that at issue in the present case, which prohibits authorised distributors of a selective distribution network of luxury goods designed, primarily, to preserve the luxury image of those goods from using, in a discernible manner, third-party platforms for internet sales of the goods in question, provided that the following conditions are met: (i) that clause has the objective of preserving the luxury image of the goods in question; (ii) it is laid down uniformly and not applied in a discriminatory fashion; and (iii) it is proportionate in the light of the objective pursued. It will be for the Oberlandesgericht to determine whether those conditions are met.”

    (cf. the CJEU’s press release No. 132/2017).

    This is the intermediary result of the Coty case as it is now up to the Higher Regional Court of Frankfurt to apply these requirements in the Coty case. Simply put, the question in that case is whether owners of luxury brands may generally or at least partially ban the resale via internet on third-party platforms. The Coty case’s history is quite interesting: The luxury perfume manufacturer Coty’s German subsidiary Coty Germany GmbH (“Coty”) set up a selective distribution network and its distributors may sell via the Internet – but banned to sell via third party platforms which are externally visible as such, i.e. Amazon, eBay, Zalando & Co. The court of first instance decided that such ban of sales via third party platforms was an unlawful restriction of competition. The court of second instance, however, did not see the answer that clear. Instead, the court requested the CJEU to give a preliminary ruling on how European antitrust rules have to be interpreted, namely article 101 TFEU and article 4 lit. b and c of the Vertical Block Exemptions Regulation or “VBER” (decision of 19.04.2016, for details, see the previous post “eCommerce: restrictions on distributors in Germany”). On 30 March 2017, the hearing took place before the CJEU. Coty defended its platform ban, arguing it aimed at protecting the luxury image of brands such as Marc Jacobs, Calvin Klein or Chloe. The distributor Parfümerie Akzente GmbH instead argued that established platforms such as Amazon and eBay already sold various brand-name products, e.g. of L’Oréal. Accordingly, there was no reason for Coty to ban the resale via these marketplaces. Another argument brought forward against the platform ban was that online platforms were important for small and medium-sized enterprises. Indications on how the court could decide appeared on 26 July 2017, with the Advocate General giving his opinion, concluding that platform bans appear possible, provided that the platform ban depends “on the nature of the product, whether it is determined in a uniform fashion and applied without distinction and whether it goes beyond what is necessary” (see the previous post “Distribution online – Platform bans in selective distribution (The Coty case continues)”).

     

    Practical Conclusions:

    1. This “Santa Claus decision” of 6 December 2017 is highly important for all manufacturers of brand-name products, brick-and-mortar-distributors, internet retailers and online platform providers – because it clarifies that manufacturers of brand-name products may ban sales via third party platforms (Amazon, eBay, Zalando and Co.) to ensure the same level of quality of distribution throughout all distribution channels, offline and online.
    2. As a glimpse back in advance: the district court of Amsterdam already on 4 October 2017 decided that Nike’s ban on its selective distributors not to use online platforms as Amazon was a lawful distribution criterion to safeguard Nike’s luxury brand image (case of Nike European Operations Netherlands B.V. vs. the Italy-based retailer Action Sport Soc. Coop, A.R.L., ref. no. C/13/615474 / HA ZA 16-959). More details soon!
    3. The general ban to use price comparison tools as stipulated by the sporting goods manufacturer Asics in its “Distribution System 1.0“ shall be anti-competitive – according to the Bundeskartellamt, as confirmed by the Higher Regional Court of Düsseldorf on 5 April 2017. The last word is, however, still far from being said – see the post “Ban of Price Comparison Tools anti-competitive & void?”. It will be interesting to see how the Coty case’s outcome will influence how to see such bans on price comparison tools.
    4. For further trends in distribution online, see the EU Commission’s Final report on the E-commerce Sector Inquiry and details in the Staff Working Document, „Final report on the E-commerce Sector Inquiry“.
    5. For details on distribution networks and distribution online, please see my articles

     

    The Coty case is extremely relevant to distribution in Europe because more than 70% of the world’s luxury items are sold here, many of them online now. For further implications on existing and future distribution networks and the respective agreements, stay tuned: we will elaborate this argument on Legalmondo!

    In this post we will briefly outline some legal aspects related to e-commerce in Iran, starting from the definition of the average Iranian user and main characteristics and advantages of e-commerce in the Islamic Republic, which is attracting several foreign investors.

    We will then analyze the requirements for the issuance of online business licenses in Iran, which is mandatory in order to open an e-shop. Finally we will take a look at some successful examples of online business in Iran.

    The average Iranian user

    Some statistics regarding Iranian users active in the virtual space are useful for understanding the size of the Iranian market, and why it is attracting several investors.

    According to the “Internet Data and Statistics”, Iran is the thirteenth country for number of internet users, as 57 million of Iranian (on 83 million of Iran’s population) have access to internet (approximately the 68% of the population), but Government sources believe these numbers are  underestimated.

    What matters for the purpose of this analysis, however, is that approximatively the 58% of the internet users search on the Internet is about information on goods and services and that – until the end of Azar 1394 (December 2015) – the average internet users are male (58%) and young (47% between 20 and 29 years old).

    In addition, the 42% of the Iranian internet users are involved in electronic commerce and the 13% use the e-banking services.

    Online Business Licenses in Iran

    Whether carried out in the traditional way or electronically, all the businesses need a business-license to operate on the Iranian market. The most important law governing  is the Union System Act 1971, amended in 1980, 2003 and in 2013, which provides that the business license is issued by the competent union or legal authority.

    E-commerce is no exception, therefore all those who intend to sell goods or provide services using the virtual space must acquire a business license.

    On February 19th, 2017 the Iranian Government issued an Executive Regulation in regard to the Issuance of License and Supervision on Businesses in Virtual Space and Network Marketing, dividing the activities in virtual space into two categories:

    1. Virtual Business;
    2. Network Marketing.

    According to Paragraph 1 in Article 1, Virtual Business is a business established by any natural or legal person in order to provide products (goods or services) directly or indirectly on a wholesale or retail basis, to wholesalers, retailers and consumers through telecommunication means such as websites and digital software (applications).

    According to Paragraph 2 of Article 1, Network Marketing is a method for selling products based on which the Network Marketing company uses its website to organize the sellers in order to sell their products directly to consumers in a place far from the regular business location. Through this method, each seller can introduce another marketer as it subset and create a multi-product sales group in order to increase sales.

    The competent authority for issuance of licenses in this regard is the National Union. Therefore, any person who intends to acquire a license in order to have its activities carried out online, must apply on the website of Center for Development of Electronic Commerce (an organ of the Ministry of Industry, Mine and Commerce, hereinafter: “CDEC” – www.enamad.ir) in order to acquire the Reliance Symbol, which is a symbol necessary to certify the identity and competence of online activities.

    Requirements for the Online Business License

    Article 3  of the Executive Regulation on Issuance of License and Supervision on Businesses in Virtual Space and Network Marketing, which governs the Issuance of Online Business Licenses in Iran, provides that business licenses shall be issued according to the following procedure:

    1. Establishment of the virtual business conforming to the checklists provided by the CDEC.
    2. Registration of application in E-Namad website (then the CDEC automatically submits the application to the unions’ website).
    3. Upload of the required documents, which we will list below.
    4. Issuance and submission of the license (after verifying the uploaded documents and the original copies thereof) to the applicant within 15 days and submission of the license information to E-Namad website.
    5. Grant of Electronic Reliance Symbol concurrent with issuance of the license.

    Furthermore, the said Regulation specifies the required documents for issuance of business license, as follows:

    1. Office or legal domicile address of the applicant;
    2. Negative criminal record from the Police;
    3. Certificate of the relevant Tax Organization regarding tax compliance;
    4. Certificate for attendance in educational courses of commerce and business;
    5. Confirmation of specialized features regarding virtual business issued by the CDED;
    6. Photocopy of ID-card/Company-Registration number, plus passport/work-permit for foreigners;
    7. Photocopy of Military Service Termination Card or Permanent or Medical Exemption Card for men under 50 or a Student Certificate.

    In addition to those, the Regulation provides some other documents for particular sectors, so it is advisable to contact an Iranian expert in the matter to verify the compliance with all applicable regulations. For instance, the Cultural Heritage, Handicrafts and Tourism Organization of Iran has set out some specific criteria for travel and tourism activities in the virtual space, so travel agency services, accommodation centers, private entities and other tourism services must follow a special procedure to render their services on virtual space.

    Successful Examples of Iranian Start-ups

    In order to become familiar with this sector, hereinafter we would like to report some inspirational examples of investments.

    1. Snapp

    Snapp is an Iranian ride hailing company which renders its services online. The Snapp application automatically connects the users to the nearest driver and shows the driver the user’s location. Afterwards, the nearest ready driver will pick up the users from their location, and Snapp calculates the price beforehand. This price is normally lower than the Taxi Agency Unions prices and can be received either in cash or via online payment or credit card.

    1. Digikala

    Digikala is the name of one of the biggest e-marketplaces in Iran. Cellphones, laptops and computers, digital cameras, office appliances, automobiles, watches, home appliances, instruments, jewelry, toys, clothes and books are some of the items sold on this website. One of the features of this website is the detailed and comprehensive reviews of different types of digital goods which can be a reliable source for purchasers.

    1. Pintapin

    Pintapin is a comprehensive tool for rendering travel services online. Accommodation services are listed in Pintapin and users can book online their desired location. It is also possible to submit the information regarding your destination, duration of stay and number of companions in order to receive suitable suggestions from Pintapin.

    1. Bamilo

    Bamilo is probably the most important Marketplace businesses in Iran. It started its activity in 2014 and is now among the most viewed websites in Iran. Based on the Amazon-model, the online store is considered as the main Iranian middleman between suppliers and consumers.

    1. Eskano

    Eskano is a smart system for searching real estate in Iran which is performed under international standards. With its huge database of transferable real estates divided between several Iranian cities, Eskano facilitates the sale and lease process, also with the possibility of setting up appointments directly through the website.

    The author of this post is Mohammad Rahmani.

    The Court of Justice of the European Union (“CJEU”) has issued a new ruling on the international scope of the Commercial Agency Directive (86/653/EEC of 18 December 1986). The new decision is in line with the rulings of

    1. the CJEU in the Ingmar case (decision of 9 November 2000, C-381/98, goodwill indemnity mandatory where the agent acts within the EU) and Unamar (decision of 17 October 2013, C-184/12, as to whether national agency law is mandatory where exceeding the Commercial Agency Directive’s minimum protection) and
    2. the German Federal Supreme Court of 5 September 2012 (German agency law as mandatory law vis-à-vis suppliers in third countries with choice-of-court clause).

    The question

    Now, the CJEU had to decide whether a commercial agent acting in Turkey for a supplier based in Belgium could claim goodwill indemnity on the basis of the Commercial Agency Directive. More specifically, the question was whether the territorial scope of the Commercial Agency Directive was given where the commercial agent acts in a third country and the supplier within the EU – hence opposite to the Ingmar case.

    The facts

    According to the agency contract, Belgian law applied and the courts in Gent (Belgium) should be competent. Belgian law, transposing the Commercial Agency Directive, provides for a goodwill indemnity claim at termination of the contract (and, additionally, compensation for damages). However, the referring court considered that the Belgian Law on Commercial Agents of 1995 was self-restraining and would apply, in accordance with its Art. 27, only if the commercial agent acted in Belgium. Otherwise, general Belgian law would apply.

    The decision

    The CJEU decided that the parties may derogate from the Commercial Agency Directive if the agent acts in a third country (i.e. outside the EU). This has here been the case since the agent acted in Turkey.

    The decision is particularly noteworthy because it – rather by the way – continues the CJEU’s Ingmar ruling under the Rome I Regulation (I.). In addition, it indirectly confirms sec. 92c of the German Commercial Code (II.) – which allows the parties to a commercial agent agreement governed by German law to deviate from the generally mandatory agency law if the commercial agent is acting outside the European Economic Area (“EEA”). Finally, it provides legal certainty for distribution outside the EEA and illustrates what may change after a Brexit as regards commercial agents acting in the United Kingdom (III.) – if the EU and the United Kingdom do not set up intertemporal arrangements for transition.

    For details, please see the article by Benedikt Rohrßen, Zeitschrift für Vertriebsrecht 2017, 186 et seq. (“Ingmar reloaded – Handelsvertreter-Ausgleich bei umgekehrter Ingmar-Konstellation nicht international zwingend”).

    Giuliano Stasio

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