On December 11, 2023, the French Competition Authority (“FCA”) imposed a €4 million fine on Mariage Frères SAS and one of its subsidiaries, Mariage Frères International SAS (together, “Mariage Frères”), a French producer of premium teas.[1]  The FCA found that Mariage Frères had been prohibiting distributors from (i) reselling its branded products online and (ii) reselling its branded products to other retailers for over 14 years, two practices prohibited by the Vertical Block Exemption Regulation (“VBER”) under both the former and new regimes.[2]

Online sales ban

Mariage Frères’ 2008 general terms and conditions (“T&Cs”) initially prohibited any type of online sales.  As of January 2019, following hearings conducted by the French Competition, Consumer Affairs and Fraud Prevention Directorate (“DGCCRF”), Mariage Frères modified its T&Cs to allow its distributors to sell online, subject to concluding an ad hoc contract with Mariage Frères governing online sales (the “ad hoc authorisation”).[3]  While the DGCCRF considered that Mariage Frères had thus put an end to the general online sales ban on that date, the FCA considered that it was not bound by the DGCCRF’s analysis and came to a different conclusion in its decision.[4]   

The FCA found that, in practice, despite distributors’ requests, Mariage Frères had never concluded any ad hoc contract.[5]  Mariage Frères also closely monitored compliance with its ban of online sales, asking distributors to remove Mariage Frères teas from their websites as soon as they were referenced.[6]  Mariage Frères justified its ban by the need to preserve the prestigious image of its products.  The FCA considered that the outright ban of online sales applicable until January 2019 amounted to a hardcore restriction of competition, in line with Article 4(b) of the 1999 VBER and the 2010 VBER.[7]  

As to the practice in place as of January 2019, the FCA considered, pursuant to Article 4(b) of the 2010 VBER and Article 4(e) of the 2022 VBER, that a de facto prohibition of online sales amounts, at the very least, to restricting of passive sales to end users and therefore also constitutes a hardcore restriction of competition.[8]  In addition, the FCA found that the modified T&C coupled with the ad hoc authorisation mechanism – which was not subject to any objective quantitative criteria and was never implemented in practice – amounted to an indirect prohibition of online sales.[9]  Moreover, in line with precedents,[10] the FCA found that, in the absence of a selective distribution system, preservation of brand image cannot be an objective justification for an absolute prohibition of online sales.[11]  

Ban on selling products to other retailers

In addition to the online sales restriction, Mariage Frères’ T&Cs also prohibited distributors from reselling its teas to other retailers.  The FCA considered this clause to be anticompetitive as it granted Mariage Frères an exclusivity for sales at the wholesale level thereby hindering potential intra-brand competition in the premium tea wholesale market to the detriment of end-consumers.  The FCA noted that, in the absence of a selective or exclusive distribution system, restriction of distributors’ sales to other distributors constitutes a hardcore restriction of competition under Article 4(b) and (d) of the 1999 VBER and 2010 VBER, as well as Article 4(c) and (d) of the 2022 VBER.[12]

FCA fine

The FCA considered that “special circumstances, relating in particular to the need to impose a fine appropriate to Mariage Frères’ activity, justified departing from the methodology described in the Fining Guidelines”.[13]  In particular, in light of the duration of the practices (i.e., from July 2008 to January 2023) and the fact that Mariage Frères’ activity almost entirely focuses on the products concerned by the conduct, applying the Fining Guidelines may have led to a disproportionate fine. 

The FCA imposed a lump fine of €4 million noting that the practices amounted to a serious infringement because Mariage Frères had implemented the bans through contractual documents[14] and closely monitored them,[15] and that these directly affected both distributors of premium teas – which are often (very) small companies – and end-consumers.[16]  The €4 million fine represents approx. 5-8% of Mariage Frères’ 2021 worldwide turnover.[17]

Application of the new 2022 VBER

According to the 2022 VBER and relating Vertical Guidelines, the prohibition of the effective use of internet is prohibited, but other restrictions of online sales or restrictions of online advertising that do not prevent the use of the online channel are lawful.  For instance, suppliers may prohibit buyers from selling goods via online marketplaces generally (without singling out any particular marketplace), as these online platforms represent only a particular method of selling online.[18]  Conversely, bans on price comparison websites or apps amount to hardcore restrictions because they prevent customers from using an entire online advertising channel.[19]

The 2022 VBER specifies the applicable legal framework with respect to suppliers operating in a free (neither exclusive nor selective) distribution system.  Under Article 4(d), practices that have as their object the restriction of the territory into which, or the customers to whom, a buyer in a free distribution system may actively or passively sell the contract goods are considered as hardcore restrictions.  Yet, a supplier may impose restrictions on its distributors to protect the territories in which it has set up an exclusive or a selective distribution system.


The Decision highlights the FCA’s constant focus on online sales restrictions.[20]  In December 2023, the FCA issued another decision in the luxury distribution sector, imposing a €91.6 million fine on Rolex for prohibiting its distributors from selling its products online.[21] 

[1]              FCA Decision no. 23-D-12 of December 11, 2023 relating to practices implemented in the premium tea sector (the “Decision”).

[2]              Commission Regulation (EU) 2022/720 of 10 May 2022 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices (the “2022 Vertical Block Exemption Regulation” or “2022 VBER”).  The 2022 VBER revised the 2010 VBER, which itself revised the 1999 VBER. 

[3]              See Decision, paras. 19-24.

[4]              See Decision, para. 178.

[5]              See Decision, para. 141.

[6]              See Decision, para. 110.

[7]              See Decision, paras. 153 and 157.

[8]              See Decision, paras. 125 and 138 referencing the European Commission’s Vertical Guidelines of 2000 (paras. 47, 49 and 51), 2010 (para. 52) and 2022 (para. 203).

[9]              See Decision, paras. 130-139.

[10]             Coty Germany GmbH v. Parfümerie Akzente (Case C-230/16) EU:C:2017:941, point 42 and Pierre Fabre Dermo-Cosmetics (Case C-439/09) EU:C:2011:649, point 47.

[11]             See Decision, paras. 151-152.

[12]             See Decision, paras. 169-173, referencing Article 4 (b) and (d) of the 1999 VBER and 2010 VBER, as well as Article 4 (c) and (d) of the 2022 VBER.

[13]             See Decision para. 188 and FCA Notice on Fines of July 30, 2021, point 6.

[14]             See Decision, para. 195.

[15]             See Decision, para. 196.

[16]             See Decision, paras. 197-198.

[17]             See Decision para. 10 stating that Mariage Frères’ turnover amounted to [50-70] million euros in 2021, including around [20-40] million euros outside France.

[18]             See 2022 Vertical Guidelines, para. 208.

[19]             See 2022 Vertical Guidelines, para. 347.

[20]             See, in previous years, FCA Decision no. 18-D-23 of October 24, 2018, relating to practices implemented in the distribution of outdoor power equipment sector and FCA Decision no. 19-D-14 of July 1, 2019, relating to practices implemented in the premium bicycle distribution sector.

[21]             See Decision no. 23-D-13 of December 19, 2023 relating to practices implemented in the luxury watch distribution sector.