Martijn van de Hel and Adriaan Craita are assisting Dick van Engelen of Ventoux in proceedings for printer and cartridge seller 123inkt against manufacturer Hewlett-Packard (HP).
At the center of these proceedings is the selective distribution system that HP intends to use to sell its cartridges. A selective distribution system means that a supplier selects its distributors based on certain criteria. According to 123inkt, given the nature of its products and its market position, competition law does not allow HP to operate such a selective distribution system. The Amsterdam court agrees with 123inkt that a selective distribution system by its nature restricts competition. The court also agrees with 123inkt that printers and cartridges are not high quality or high technology products, nor luxury products or products that otherwise require selective distribution. Furthermore, the court agrees that HP cannot invoke the Vertical Agreements Block Exemption because of its market share higher than 30%.
According to HP, its selective distribution system may benefit from an (individual) exemption under Article 101(3) TFEU. Because the debate has not yet focused on the (im)possibility of an individual exemption, both parties have the opportunity to comment on this. In anticipation of this, the Court wonders, among other things, whether a number of criteria used by HP can be considered indispensable and/or have not been formulated too broadly and/or too vaguely. HP and 123inkt will have to comment on this. Until then, the court will reserve any further decision.
Want to learn more about the topic of selective distribution? Read our blog here or check out this Maverick Briefing.
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