On 26 March 2025 the Italian Competition Authority (“AGCM”) announced to have launched an investigation on a suspected infringement of Article 101 TFEU by Morellato, a well-known national manufacturer of jewels and watches. In particular, Morellato would prohibit its selected distributors, de facto or through legal arrangements, to sell its products on online marketplaces and third-party platforms, while reserving this possibility to itself.
Although we are still far from a final decision in this case (which is expected 20 March 2026), the investigation under scrutiny is very important, as it represents the first AGCM application by AGCM of the rules on restrictions to sales on online marketplaces set forth by the new VBER (Regulation EU 2022/720) and the 2022 guidelines on vertical restraints (“Guidelines”).
Factual background
In light of the luxurious nature of the products to be sold (jewels and watches), Morellato opted to structure its distribution network as a selective distribution system. To this end Morellato’s distributors must contractually meet a number of qualitative conditions, that include not only the usual requirements in terms of personnel training, displaying, marketing and advertising of the products in the resellers’ physical stores, but also certain conditions regulating the online sale of Morellato’s products. However, while allowing to sell Morellato’s jewels and watches through the websites owned and managed by the distributors themselves, the various distribution agreements would ban the distributors from doing so through ). In the case of Amazon, such a possibility would also be prevented by the Morellato’s .
The EU antitrust case-law on selective distribution systems
According to the settled EU antitrust case-law, selective distribution systems comply with Article 101 TFEU insofar as resellers of high-quality or high-technology products are selected on objective and qualitative grounds and these criteria are assessed in a non-discriminatory way (see Metro I, § 20) and are proportionate to the legitimate goals pursued by those distribution systems (Pierre Fabre,§ 43), such as the need to protect the prestigious image of the products or to ensure a high level of technical assistance to the customers (see also AEG-Telefunken, § 33).
In the Pierre Fabre case, the Court of Justice dealt with a (de facto) comprehensive ban of online sales in the context of a selective distribution system, dismissing the quality and safety-driven justifications brought forward by the supplier and concluding that such a ban constituted a restriction by object pursuant to Article 101 TFEU.
The Coty case
In 2017, following a request for a preliminary ruling, the Court of Justice dealt with compliance of clauses prohibiting online sales through third-party platforms imposed on authorized distributors of luxury goods, adapting the criteria already set forth by the previous case-law for brick-and-mortar stores.
Indeed, the Court of Justice concluded that the above clauses could be “appropriate to preserve the luxury image of those goods”, provided that they comply with the aforesaid requirements of appropriateness, non-discrimination and proportionality (Coty, §§ 51 and 58). It is worth noting that the Coty ruling followed previous cases in which the German Bundeskartellamt took a different view regarding per se ban on sales via online marketplaces (see Adidas and Asics cases).
The 2022 VBER and Guidelines
The Coty judgment, as well as the need to reflect technological and business advances occurred in the meantime, notably on the online distribution of products or services, prompted the European Commission to start a review process of the then VBER and Guidelines (both dating back to 2010), which were replaced in 2022.
Particularly relevant for the case under scrutiny, Article 4 of the current VBER now allows, for the purpose of admitting a vertical agreement to its block exemption, restrictions of online sales or restrictions of online advertising provided that “they do not have the object of preventing the use of an entire online advertising channel” and do not prevent “the effective use of the internet by the buyer or its customers to sell the contract goods or services”.
An interpretation of what can be, in practice, the prevention of “the effective use of the internet” is then provided by the Guidelines.
With specific regard to online marketplaces – and therefore particularly relevant for the case under scrutiny – the Guidelines, while recognising that “restrictions on the use of online marketplace are often agreed in selective distribution systems”, specify that the conditions of appropriateness and proportionality are unlikely to be fulfilled where the supplier “restricts the use of an online marketplace, but uses that online marketplace itself to sell the contract goods or services” (§ 338). For the purpose of assessing the proportionality of the restriction, the Guidelines go further by stating that “a ban on all sales through online marketplaces is more restrictive than a restriction on the use of particular online marketplaces or a requirement to only use online marketplaces that meet certain qualitative criteria” (§ 341); likewise, the Guidelines imply that an absolute ban on online sale through marketplaces may be hardly justified “where the online marketplace allows retailers to create their own brand shop within the marketplace and thus exert more control over the manner in which their goods or services are sold” (§ 342).
The AGCM preliminary assessment and possible developments of the
Referring to some of the aforesaid provisions of the new VBER and Guidelines, in its preliminary assessment AGCM qualified the ban on sales via online marketplaces imposed by Morellato on its distributors as potentially discriminatory, disproportionate and not justified by qualitative reasons and as such potentially preventing the effective use of the internet to sell Morellato’s products, thus possibly breaching Article 101 TFEU.
In particular, AGCM argued that the prohibition could be discriminatory to the extent that, as we have seen, Morellato directly sells its products through online marketplaces, so that the prohibition imposed on the distributors could not be justified on quality grounds, such as for the purpose to protect the brand image of Morellato. Likewise, the ban could be considered disproportionate for the purpose of exerting control over the manner in which Morellato’s products are marketed online in light of the fact that certain online marketplaces (namely Amazon)
On the other hand, Morellato could argue that a strong level of service quality and brand protection can be ensured on the online sale of marketplace only if directly carried out by Morellato could also assert the (hypothetically strong) level of inter-brand competition at the supplier and distributor level and the lack of cumulative effects arising from similar restrictions on online sales or advertising imposed by other suppliers (see § 341 of the Guidelines) or bring forward other quality or efficiency-related justifications of the conduct pursuant to Article 101(3) . Such a potential defence, however, would be easily dismissed should the conducts at stake be read by AGCM as actually preventing “the effective use of the internet” by the distributors and as such as an hard-core restriction pursuant to Article 4(e) VBER.
We cannot exclude that AGCM (rather than high-end) products ascribed to Morellato’s jewels and watches (§ 26 of the AGCM decision to initiate the investigation); this could further reduce Morellato’s chances of justifying its conducts on quality grounds, or even rule out the possibility of restricting online sales of its products altogether, regardless of the peculiarities of the case at hand.
The developments in the case could provide guidance on AGCM view regarding restrictions on online marketplaces and, relatedly, on the ability of authorized distributors of selective distribution systems to challenge the validity of similar clauses in their distribution agreements.