ABSTRACT
Article 4(b) excludes from the scope of the exemption any ‘restriction of the territory into which, or the customers to whom, the buyer may sell the contract goods or services’. This exclusion is predicated upon the Community market-integration goal and the concern over the creation of compartmentalised markets within the Community. Nonetheless, even in Consten and Grundig, and in a number of developments since then, notably the exclusive distribution Regulation 1983/83, it has been recognised that some form of territorial exclusivity may be required as an incentive for a distributor to promote a product effectively, even if absolute territorial protection is not allowed. Accordingly, there are exceptions to this exclusion and the key exception allows for the restriction of ‘active sales to the exclusive territory or exclusive customer group’. This may allay some of the criticisms of the Community’s past approach to territorial restrictions. The Commission’s Guidelines on vertical restraints highlight the distinction between active and passive sales.53 The Commission is obviously wary of deterring the growth of e-commerce and, in general, the Commission has confirmed that the use of the internet is not considered a form of active sales as it is a reasonable way of reaching customers. As long as the website is not specifically targeted at specific customers or customers primarily inside another territory it will not constitute active sales; the language used on the website is not a crucial factor. The Commission’s view of passive selling, aside from e-commerce, appears to be limited to catalogue selling and responding to unsolicited emails. This restrictive view means that the exclusion of territorial restrictions from the exemption will be wide and may exclude from the Regulation many distributorship agreements which limit web-selling across territories. The uncertainty as to what constitutes an active sale may need to be resolved by the European Court, but in the meantime, the uncertainty may lead to difficulties for national courts attempting to interpret the Regulation.
