Commission staff working document

261^ About a third of the retailers that responded to the questionnaire have indicated "selling through a marketplace" as one possible way to increase online sales in Member States where they either do not sell at all or do not sell significant quantities. See also section B.

4.3.2.3 The role of online marketplaces for cross-border salesfor more information on the role of marketplaces for cross border sales.

262^ Proportions are calculated out of all retailers who responded to the relevant questions, namely 1009.

263^ Figure calculated based on all the retailers who provided the relevant data, namely 663.

264^ Figure calculated based on the data of 295 sellers on which marketplaces submitted information.

265^ Proportion calculated based on the information provided by all 37 marketplaces.

266^ Proportions are calculated out of all respondents in a given turnover category (on the basis of 2014 turnover) who responded to the relevant questions. This number ranges from 74 respondents in the turnover category EUR 50 million to EUR 100 million to 297 respondents in the turnover category above EUR 100 million.

267^ Proportions are calculated out of all respondents in a given turnover category (on the basis of 2014 turnover) who responded to the relevant questions. This number ranges from 74 respondents in the turnover category EUR 50 million to EUR 100 million to 297 respondents in the turnover category above EUR 100 million.

268^ Proportions are calculated out of all respondents in a given turnover category (on the basis of 2014 turnover) who responded to the relevant questions. This number ranges from 74 respondents in the turnover category EUR 50 million to EUR 100 million to 297 respondents in the turnover category above EUR 100 million.

269^ Proportions are calculated out of the total number of purchases reported by respondents in a given turnover category (on the basis of 2014 turnover) who sold both via their own online shop as well as via marketplaces and that provided the relevant information on purchases. The number of respondents ranges from 20 respondents in the turnover category EUR 50 million to EUR 100 million to 40 respondents in the turnover category above EUR 100 million.

270^ The proportion at the EU level is calculated out of all retailers who replied to the relevant questions, namely 1009. Proportions at the Member State level are calculated out of all retailers that responded from the respective Member State to the relevant questions. Only Member States with a minimum of 20 respondent retailers were taken into account.

271^ Proportions per product category were calculated for each of the 34 marketplaces who replied to the relevant question. Subsequently, the average of these proportions was taken for each product category. The figure shows, for example that professional sellers selling clothing and shoes on a marketplace account on average for 25 % of all sellers on a marketplace.

272^ Figures are calculated based on the responses of all 37 marketplaces.

273^ These product categories are also the product categories in which most marketplace restrictions can be observed (see Figure B. ).

274^ Proportion calculated out of all suppliers active in the given product category. Note that in the product categories Media and Computer games there are only, respectively, 6 and 7 respondents.

275^ This is also evident from the fact that a quarter of the manufacturers who indicate that selling on (certain) marketplaces could have a potentially adverse impact on their business, consider that selling on (certain) marketplaces could also have a potentially beneficial impact on their business.

276^ Proportion calculated out of all manufacturers active in the relevant product category. Note that in the product categories Media and Computer games there are only, respectively, 6 and 7 respondents.

277^ The proportion at the EU level is taken from all retailers that responded to the retailers' questionnaire. Proportions at the Member State level are calculated out of all retailers that responded from the respective Member State. Only Member States with a minimum of 20 respondent retailers were taken into account.

278^ Proportions are calculated out of all 1051 retailers that responded to the questionnaire. Please note that each retailer was able to select several types of restrictions on the use of marketplaces.

279^ Proportions are calculated out of all retailers in a given turnover category.

280^ Proportion calculated out of all retailers active in the given product category.

281^ Most marketplaces do not differentiate in terms of product presentation between luxurious products and mainstream goods.

282^ See also below in section B.4.4.7. Notice and take down procedures on marketplaces more on mechanisms and tools offered by marketplaces to combat the sale of counterfeit and otherwise prohibited products on their platforms.

283^ Conversely, some retailers consider that brand owners misuse existing notification systems and complain to marketplace operators about sales of products on the marketplace which are allegedly counterfeit products although they are in fact authentic. In these cases, brand owners require marketplaces to de-list the products and request from the retailers to stop selling them. According to the retailers, it often does not help them that they can prove the authenticity of the products. They will ultimately stop selling the products out of fear that their marketplace accounts would otherwise be blocked due to the intervention of the brand owner.

284^ All proportions are calculated out of the 34 marketplaces that responded to the relevant question.

285^ A reference for a preliminary ruling has been made by the OLG Frankfurt am Main in Case C-230/16 Coty Germany GmbH vs. Parfümerie Akzente GmbH in which the referring court is essentially asking the Court of Justice whether a ban to use third party platforms which are discernible to the public in a selective distribution agreement may be compatible with Article 101(1) TFEU and whether such a restriction constitutes a hardcore restriction within the meaning of Article 4 (b) and/or Article 4 (c) of the VBER.

286^ Judgment in Pierre Fabre Dermo-Cosmétique SAS vs. Président de l’Autorité de la concurrence EU:C:2011:649, paragraphs 47 and 54. See also Vertical Guidelines paragraph 52.

287^ See Vertical Guidelines, paragraph 54.

288^ See section B.1.4 Price comparison tools on characteristics of respondent price comparison tools.

289^ See section B.1.4 Price comparison tools on characteristics of respondent price comparison tools.

290^ Figures are calculated based on all respondents to the relevant question, namely 1013.

291^ Proportions are calculated out of all respondents in a given turnover category (on the basis of 2014 turnover) who responded to the relevant questions. In total 994 retailers provided the respective information.

292^ The proportion at the EU level is calculated out of all retailers who replied to the relevant question, namely 1013. Proportions at the Member State level are calculated out of all retailers that responded to the relevant question from the respective Member State. Only Member States with a minimum of 20 respondent retailers were taken into account.

293^ Figures are calculated based on the responses of 48 price comparison tools.

294^ Figures are calculated based on all retailers who provided data regarding the relevant question, namely 260.

295^ Figures are calculated based on the responses on 88 price comparison tools.

296^ Proportions are calculated based on the responses of 36 price comparison tools. The proportions per product category are calculated as the (simple) average of the proportion of sellers in the respective product category across respondents.

297^ Proportions are calculated on the basis of the replies of 30 price comparison tools who supplied information on 2412 top retailers. The proportions per product category are calculated as the (simple) average across respondents of the proportion of visits in the respective product category out of the total visits reported by a respondent.

298^ Proportions are calculated out of all retailers that responded to the questionnaire from the respective Member State. Only Member States with a minimum of 20 respondent retailers were taken into account.

299^ Proportions are calculated out of all 1051 retailers that respondent to the questionnaire.

300^ Proportion are calculated out of all retailers that responded to the relevant question in each of the turnover categories. This number ranges from 74 retailers for the turnover category EUR 50 million to EUR 100 million to 299 retailers for the turnover category above EUR 100 million.

301^ Proportions are calculated out of all retailers that indicated sales in the respective product category.

302^ Figures are calculated based on all 86 respondents to the question.

303^ Proportions are calculated out of all respondents which are active in the respective product category. See also Figure B. and Figure B. .

304^ Meaning price comparison tools that are not offering any sales functionality.

305^ While the price may be an important element for the customer in its choice, other features of price comparison tools such as customer reviews concerning products or sellers may also be of relevance.

306^ See paragraph 54 of the Vertical Guidelines.

307^ 8 % of retailers reported to be provided with a discount range while 7 % retailers reported receiving the indication from manufacturers to apply the same retail price online and offline. Proportions are calculated out of all 1051 responses to the questionnaire.

308^ 5 % of retailers reported receiving indications of what minimum price they should apply while 3 % stated they received indications about what advertised price they should use.

309^ Proportions are calculated out of all retailers active in a given product category.

310^ Proportions are calculated out of all manufacturers (251) that responded to the questionnaire.

311^ 14 retailers reported about contractually guaranteed profit margins. Many of them are active in at least two product categories, and indicated guaranteed profit margins in several product categories, with different manufacturers.

312^ Based on the responses of 245 manufacturers who replied to this question.

313^ Based on the responses of 78 manufacturers who replied to this question. Each respondent could provide multiple responses, should they use multiple methods to track prices.

314^ Proportions are calculated out of all 242 manufacturers that responded to the relevant question.

315^ Proportions are calculated out of the responses by 410 retailers that responded to the relevant question.

316^ Proportions are calculated out of all retailers (411) that responded to the relevant question.

317^ See judgment in SA Binon Cie v SA Agence et Messageries de la Presse, 243/83, EU:C:1985:284, paragraph 43; judgment in ASBL Vereniging van Vlaamse Reisbureaus v ASBL Sociale Dienst van de Plaatselijke en Gewestelijke Overheidsdiensten, 311/85, EU:C:1987:418, paragraph 17; judgment in SPRL Louis Erauw-Jacquery v La Hesbignonne SC, 27/87, EU:C:1988:183, paragraph 15.

318^ Some examples of efficiencies that could be potentially be generated by pricing restrictions are outlined in paragraph 225 of the Vertical Guidelines.

319^ See Vertical Guidelines, paragraph 226. For the assessment of those pricing practices when they are not covered by the VBER, see paragraphs 227-229 of the Vertical Guidelines.

320^See Vertical Guidelines, paragraph 48.

321^ According to paragraph 52 (d) of the Vertical Guidelines, the Commissions considers an agreement that the distributor shall pay a higher price for products intended to be resold by the distributor online than for products intended to be resold offline as a hardcore restriction of passive selling. This does not exclude the supplier agreeing with a buyer a fixed fee to support the latter's offline or online sales efforts.

322^ Unless different wholesale prices to (online) retailers have the object of restricting exports or partitioning markets.

323^ See in particular Vertical Guidelines, paragraphs 52 (d) and 64.

324^ Free-riding by pure online sellers on services provided offline can be addressed by other means, such as price differentiation.

325^ Based on the 1051 retailers who responded to the questionnaire.

326^ 515 retailers have reported to track online prices of competitors.

327^ Based on the responses of 343 retailers who responded they were using software to track prices.

328^ Manufacturers could not only intervene based on their own initiative but also following complaints by other retailers about the price level of certain retailers in the market.

329^ See also the joint publication by the French and German Competition Authorities, p. 14-15. Available at the following address: http://www.bundeskartellamt.de/SharedDocs/Publikation/DE/Berichte/Big%20Data%20Papier.pdf?__blob=publicationFile&v=2

330^ See section B.3.4.3 Selective distribution on selective distribution.

331^ Vertical Guidelines, paragraph 56.

332^ See judgment in Pierre Fabre Dermo-Cosmétique SAS vs. Président de l’Autorité de la concurrence EU:C:2011:649, paragraphs 53 et seq and Vertical Guidelines, paragraph 52.

333^ Judgment in Pierre Fabre Dermo-Cosmétique SAS vs. Président de l’Autorité de la concurrence EU:C:2011:649, paragraphs 56 and 59.

334^ See judgment in Google France and Google, C-236/08 to 238/08, EU:C:2010:159, paragraphs 75 et seq.

335^ All 37 respondent marketplaces responded to the question.

336^ 69 price comparison tools responded to the question.

337^ Personal data is defined in Article 2(a) of the Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data as mean any information relating to an identified or identifiable natural person ('data subject'); an identifiable person is one who can be identified , directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity. Directive 95/46/EC will be replaced by the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data. It entered into force on 24 May 2016, providing for analogous definition of personal data. It will be applicable as of 25 May 2018.

338^ The term "big data" lacks a commonly accepted definition. It could be described as large amounts of different types of data produced at high speed from multiple sources, whose handling and analysis require new and more powerful processors and algorithms. See European Data Protection Supervisor under https://secure.edps.europa.eu/EDPSWEB/edps/Consultation/big_data.

339^ The German Bundeskartellamt and the French Authorité de la Concurrence provide further insights on data-related competition concerns in their report: "Competition law and data", 10 May 2016.

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