An Alleged Infringement Of Prohibitions On Resale Outside A Selective Distribution Network


Provisional text


21 December 2016 *

(Reference for a preliminary ruling — Judicial cooperation in civil matters — Regulation (EC) No 44/2001 — Jurisdiction — Tort, delict or quasi-delict — Selective distribution network — Prohibition on online resale outside a network — Action for an injunction prohibiting unlawful interference — Connecting factor)

In Case C‑618/15,

REQUEST for a preliminary ruling under Article 267 TFEU from the Cour de cassation (Court of Cassation, France), made by decision of 10 November 2015, received at the Court on 23 November 2015, in the proceedings

Concurrence SARL


Samsung Electronics France SAS,

Amazon Services Europe Sàrl,

THE COURT (Third Chamber),

composed of L. Bay Larsen, President of the Chamber, M. Vilaras, J. Malenovský, M. Safjan (Rapporteur) and D. Šváby, Judges,

Advocate General: M. Wathelet,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–        Concurrence SARL, by P. Ricard, avocat,

–        Amazon Services Europe Sàrl, by A. Bénabent and M. Jéhannin, avocats,

–        the French Government, by D. Colas and C. David, acting as Agents,

–        the Italian Government, by G. Palmieri, acting as Agent, and by D. Del Gaizo, avvocato dello Stato,

–        the Luxembourg Government, by D. Holderer, acting as Agent, and by M. Thewes, avocat,

–        the European Commission, by C. Cattabriga and M. Heller, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 9 November 2016,

gives the following


1        This request for a preliminary ruling concerns the interpretation of Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1).

2        The request has been made in proceedings between Concurrence SARL, established in France, and Samsung Electronics France SAS (‘Samsung’), also established in France, and Amazon Services Europe Sàrl (‘Amazon’), established in Luxembourg, concerning an alleged infringement of prohibitions on resale outside a selective distribution network and on a marketplace, by means of online offers on several websites operating in various Member States.

 Legal context

 Union law

3        Recital 2 of Regulation No 44/2001 stated that that regulation was intended, in the interests of the sound operation of the internal market, to implement ‘provisions to unify the rules of conflict of jurisdiction in civil and commercial matters and to simplify the formalities with a view to rapid and simple recognition and enforcement of judgments from Member States bound by this Regulation’.

4        Recitals 11, 12 and 15 of that regulation stated:

‘(11)      The rules of jurisdiction must be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile and jurisdiction must always be available on this ground save in a few well-defined situations in which the subject-matter of the litigation or the autonomy of the parties warrants a different linking factor. The domicile of a legal person must be defined autonomously so as to make the common rules more transparent and avoid conflicts of jurisdiction.

(12)      In addition to the defendant’s domicile, there should be alternative grounds of jurisdiction based on a close link between the court and the action or in order to facilitate the sound administration of justice.

(15)      In the interests of the harmonious administration of justice it is necessary to minimise the possibility of concurrent proceedings and to ensure that irreconcilable judgments will not be given in two Member States …’

5        The rules of jurisdiction were set out in Chapter II of that regulation.

6        Article 2(1) of Regulation No 44/2001, which comes under Section 1 of Chapter II, entitled ‘General provisions’, read as follows:

‘Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.’

7        Article 3(1) of that regulation, also in Section 1 of Chapter II, provided:

‘Persons domiciled in a Member State may be sued in the courts of another Member State only by virtue of the rules set out in Sections 2 to 7 of this Chapter.’

8        Article 5(3) of that regulation, which were included in Section 2 of Chapter II thereof, entitled ‘Special jurisdiction’, provided:

‘A person domiciled in a Member State may, in another Member State, be sued:

3.      in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur.’

9        Regulation No 44/2001 has been repealed by Article 80 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1). By virtue of the second paragraph of Article 81 of that regulation, it is applicable only from 10 January 2015.

 French law

10      At the material time in the main proceedings, Article L. 442-6, paragraph 1, No 6, of the code de commerce (Commercial Code) provided:

‘… Any producer, trader, manufacturer or person registered in the trades register shall be liable for, and obliged to compensate for the harm resulting from, any act by which:

6      they are directly or indirectly involved in contravening the prohibition on reselling outside the network imposed on distributors bound by a selective or exclusive distribution agreement covered by an exemption under the rules applicable to competition law.’

 The dispute in the main proceedings and the question referred for a preliminary ruling

11      It is apparent from the documents before the Court that Concurrence is active in the retail of consumer electronics, trading through a shop located in Paris (France) and on its online sales website ‘’. On 16 March 2012, it concluded with Samsung a selective distribution agreement, entitled ‘Specialist ELITE retailer’, for high-end Samsung products, namely the ELITE range. That agreement included, in particular, a provision prohibiting the sale of the products in question on the internet.

12      Following the conclusion of that agreement, a dispute arose between the parties. Samsung accused Concurrence of breaching the selective distribution agreement by selling the ELITE products on its website. For its part, Concurrence contested the legality of the terms of the contract, alleging inter alia that these were not uniformly applied to all distributors, some of whom marketed the products in question on several Amazon websites, without any response from Samsung.

13      By letter of 20 March 2012, Samsung informed Concurrence of the termination of their commercial relationship, with effect from 30 June 2013.

14      In April 2012, citing Samsung’s refusal to supply it with the ELITE product range, contrary to the commitments entered into, Concurrence brought an action for interim measures against Samsung before the Tribunal de commerce de Paris (Commercial Court, Paris, France).

15      By order of 18 April 2012, that court dismissed Concurrence’s claims. That order was upheld on 25 October 2012 by the Cour d’appel de Paris (Court of Appeal, Paris, France), acting in its capacity to hear applications for interim measures.

16      On 3 December 2012, Concurrence brought, for a second time, an action against Samsung before the Tribunal de commerce de Paris (Commercial Court, Paris), with a view to obtaining an interim order declaring the prohibition on the sale of the ELITE product range on the internet imposed by the selective distribution agreement unenforceable against it and requiring Samsung, in consequence, to continue to supply it with the products covered by that agreement. Moreover, on the same day, Concurrence brought an action for the first time against Amazon with a view to obtaining an interim order requiring the withdrawal of any offers for sale of a number of Samsung product models from its,,, and websites.



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