a decision 08-D-25's October 29, 2008 ( Competition Council), the Competition Council had fined the company Pierre Fabre a penalty - after his refusal to make commitments - in the wake of the ban imposed by the contract manufacturer to its distributors to offer various products on the internet (Klorane, Avene, Ducray, Galenic).
The Competition Council and enjoined to Pierre Fabre deleted in its selective distribution agreements, all references equivalent to a prohibition on Internet sales of its cosmetics and personal hygiene and make express provision for its distributors to use this method of distribution, within 3 months after the notification of the decision .
Pierre Fabre decided later to challenge this decision before the Court of Appeal Paris, which, by a decree of 29 October 2009, decided to refer the case in the European camp. Even if the Commission had acted willfully in this case, the Court of Appeal noted that the Commission did not adhere " completely to the analysis of e Councilof competition, particularly on the assimilation of the practice of intervention for Internet sales to a restriction of active sales and passive distributors .
The appellate court formula is indeed a question to the ECJ (now ECJ) for saying "if general and absolute prohibition on the Internet to sell products to contractors end-users authorized retailers in a selective distribution network is actually a hardcore restriction of competition by object within the meaning of Article 81 § 1 of the EC Treaty beyond the exemption provided by Regulation No. No 2790/1999, but may be eligible for individual exemption under Article 81 § 3 of the EC Treaty ".
Parallel to this litigation, Pierre Fabre continued to prohibit its dealers internet sales. Thus, a pharmacy (Pharmacy SELARL Flag)" sought and obtained his approval to distribute in a facility approved brands including [Pierre Fabre] owns . "But Pierre Fabre realized the marketing of products on the Internet by pharmacies. The manufacturer therefore decided to send 23 July 2009 a " notice before withdrawal to the extent that Internet technology not only allows the state to effectively respond to unsolicited advice on the choice products tailored to consumer needs, which makes necessary a physical presence for a direct assessment of the health problem posed or care.
The pharmacy therefore decided to enter the judge of the Commercial Court of Toulouse, in an order of October 29, 2009, ordered the suspension of the withdrawal of the approval given to the pharmacy " until the intervention of a final decision on the merits or until the intervention of the decision of the Court Appeal of Paris on the invitation of [Pierre Fabre] against the decision of the Competition Council of 29 October 2008 . "Pierre Fabre lodged appeal against that order.
The Court of Appeal of Toulouse notes that " the dispute concerns the sale of Internet products dermocosmetics by an authorized dealer as part of a distribution network" and that " the Opinion of the Court of Justice of the European Union, the new name of the Court of Justice since the entry into force of the Treaty of Lisbon on 1 December 2009, should be taken into account in the decision that the court Appeal of Toulouse will have to make .
Judges Toulouse have therefore ordered a stay pending the decision of the intervention the ECJ in this case. This recalls the many cases Google Adwords suspended the decision of the ECJ made - since - in March 2010.
Source: CA Toulouse, 20.10.2010, SAS Pierre Fabre Dermo-Cosmetics v. SELARL Pharmacy Flag (unpublished)
Author: Benoit Tabaka - http://tabaka.blogspot.com 
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