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Why the discriminatory application of criteria in selective distribution systems is block exempted under Regulation 330/2010

Andreas Eberhardt, European Competition Journal, Vol. 11, No. 1, 168–192, April 2015

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This article examines to what extent the discriminatory application of criteria in selective distribution systems is block exempted under Regulation 330/2010. First, the author argues that discrimination is unlikely to occur within the market share thresholds of Regulation 330/2010. In addition, the point is made that Article 101 TFEU can only be used to deal with the discriminatory application of criteria in very limited scenarios. Also, arguments are presented that show there is little doubt that the Commission considers the discriminatory application of criteria as block exempted even if Regulation 330/2010 and the accompanying guidelines are not particularly clear. Finally, the author argues that the recent CJEU Auto 24 judgment allows for the discriminatory application of criteria and is equally applicable to Regulation 330/2010. The author concludes that in the context of the block exemption provided by Regulation 330/2010, a supplier is free to discriminate in the application of its selective distribution criteria.

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