By its judgement of 26 January 2022, the French Supreme Court (“Cour de cassation”) validates the contested reasoning of the Paris Court of Appeal and the French Competition Authority (hereinafter, the “FCA”), which fined the manufacturer Stihl 7 million euros (reduced to 6 million euros on appeal) for having prevented its authorised distributors from selling its products online.
Summary of the facts and procedure
Ruling on the possibilities of selective distribution and restrictions on online sales for the first time since the Coty judgement , the FCA found, by its decision of 24 October 2018  that it was established that Stihl had infringed the provisions of articles 101 § 1 of the TFEU and L. 420-1 of the French commercial Code, by restricting distance selling on the internet from its authorised distributors’ websites.
In particular, the FCA considered that the so-called “handover” obligation contained in the contract between Stihl and its distributors, even when reserved for certain dangerous products – as it was the case in Stihl contracts after 2014 – led to a de facto ban on online sales of these products and therefore constituted an anti-competitive practice by object, notwithstanding the safety reasons invoked by Stihl.
According to Stihl, this obligation did not prohibit sales on the internet but only regulated the delivery of dangerous products, such as chainsaws and other brushcutters. This “handover” obligation was, in its view, a legitimate objective of securing the buyers.
If the analysis of the practice and the justifications put forward by Stihl appears, in the light of the recent decision-making practice, to be quite common, the decision is of interest in terms of different approaches taken by competition authorities in Europe.
The FCA stands out among the German, Swedish and Swiss competition authorities
Among other arguments, Stihl evoked the fact that other competition authorities had validated the contractual scheme put in place by Stihl. In particular, Stihl relied on “written and oral discussions” with the German Competition Authority (“Bundeskartellamt”) between 2013 and 2016 where the latter concluded there was “no reason to initiate formal proceedings for non-compliance with German and/or European competition law”. The Bundeskartellamt indicated to Stihl that “it would continue to observe the functioning of the selective distribution in practice, but that it would under no circumstances impose a fine for the restrictions in question”.
As to this point, the French Supreme Court answered that “national competition authorities are not competent to take a negative decision, that is to say a decision concluding that there is not infringement of article 101 of the TFEU”, and concluded that Stihl is not entitled to claim that the FCA erred in law by finding the existence of a restriction of competition by object, even though this analysis was not shared by the German, the Swedish and the Swiss competition authorities.
Indeed, the French Supreme Court considered that the provisional assessment of a factual situation by one competition authority is not capable of constituting an “acquired experience”, within the meaning of the EU case law, such as to preclude the individual and detailed examination of the same measures by another competition authority.
Thus, according to the French Supreme Court, the FCA (as well as the Paris Court of Appeal) was free to make its own analysis of Stihl’s behaviour.
A strict approach of the legitimate objective of securing the buyers
Among the main arguments put forward to justify the “handover” obligation, Stihl underlined the fact that the clause at stake, regulating internet sales, must be considered as pursuing a legitimate objective of securing the use of the products, which was necessary to achieve such an objective.
However, the French Supreme Court, reiterating here the Paris Court of Appeal’s arguments, noted that the legal framework for the marketing of products sold by Stihl essentially provides for the communication of instructions for use written in the language of the State of purchase, which, in the case of dangerous products, must include specific information, and that it does not prohibit any type of sale, in particular distance selling, nor does it require that sales be carried out in a physical area and be accompanied by advice and/or a demonstration by a specialised salesperson, unlike the system implemented within the Stihl network.
Finally, the French Supreme Court considered that the “handover” obligation imposed by Stihl’s contracts applied without distinction between professionals and non-professionals, which goes beyond what would be necessary to ensure the “objective of making the use of products safe”, the French Supreme Court considering that such objective could be achieved by other means than the requirement of physical contact concomitant with the sale, in particular by means of remote assistance. But we can ask ourselves whether the court’s ruling would have been different if such differentiation would had been implemented by Stihl?
Thomas Lamy – Floriane Pisivin
Avocats à la Cour
 CJEU, Coty Germany GmbH v. Parfümerie Akzente GmbH, 6 December 2017, C-230/16.
 FCA, Decision n°18-D-23 of 24 October 2018 concerning practices implemented in the sector of distribution of motorbike equipment.