Will the dermo-cosmetic products of the group Pierre Fabre (brands Avène, Klorane, Galénic and Ducray) soon be available for sale on internet? It is very likely, in view of the recent decision of the Court of justice of the European Union (CJEU). [1]
Pierre Fabre Laboratories have been opposed to the sale of dermo-cosmetic products on the Internet for many years. Indeed, they have argued that “only the physical presence of a qualified pharmacist guarantees consumers the quality of pharmaceutical and personalized advice that is tailored to meet their expectations of efficiency and safety.” Thus de facto forbidding any possibility of online sale.
In October 2008, the Autorité de la concurrence (French Competition Authority) decided that this position was contrary to the European Union competition law. Pierre Fabre challenged that decision before the Cour d’appel de Paris (France), which has asked the CJEU to provide its legal opinion.
The Court of Justice recalled its interpretation of the article 101 of the Treaty on the Functioning of the European Union (TFEU), prohibiting agreements which have as their object or effect the restriction of competition, while exemptions may be admitted for agreements which improve the distribution of products or contribute to promoting economic progress. According to the Court, an absolute prohibition of online sales is to be considered, in the absence of objective justification, as “restriction by object”.
The Court points out that, even in the case of non-prescription medicines and contact lenses, it never accepted arguments relating to the need to provide individual advice to the customer and to ensure his protection against the incorrect use of products, to justify a ban on internet sales.
Similarly, the Court rules that the need to maintain the prestigious image of Pierre Fabre Dermo-Cosmétique’s products is not a legitimate aim for restricting competition.
After these precisions, the CJEU recalled it is to the Court of Appeal of Paris to examine whether the Laboratoires Pierre Fabre may benefit from an individual exemption, what seems highly unlikely in view of the interpretation of the CJUE.
“Pierre Fabre Laboratories have taken note of the opinion of the European Union Court of Justice. They are satisfied that it opens the possibility of an individual exemption from a general principle,” commented the group in a release.
The decision of the Court of Appeal, should be released in the first half of 2012.
