Short answer
Fixed or minimum resale prices, broad bans on passive sales, absolute territorial or customer protection, and restrictions designed to prevent distributors from using the internet effectively are the clearest EU competition-law dangers. They are normally “hardcore restrictions” under Commission Regulation (EU) 2022/720, so the entire vertical agreement loses that Regulation's safe harbour.
But hardcore does not mean automatically unlawful. Article 101 still requires coordinated conduct affecting trade between Member States and restricting competition by object or effect. An individually proven Article 101(3) exemption remains possible, although difficult for serious restrictions.
Not every sales condition is prohibited. A supplier may reserve certain active sales, protect a selective system from unauthorised distributors, set online quality standards, and restrict particular marketplaces if distributors retain effective stores and advertising. Maximum and recommended resale prices are generally possible unless pressure makes them fixed or minimum. The wording, distribution model, market shares, enforcement, and real effect all matter.
Start with Article 101, not the “hardcore” label
Article 101(1) of the Treaty on the Functioning of the European Union (TFEU) supplies the infringement test:
The following shall be prohibited as incompatible with the internal market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market. —
This requires coordinated conduct, an effect on inter-State trade, and an appreciable restriction by object or effect. Article 101(2) makes prohibited agreements and decisions void. Article 101(3) nevertheless applies if an agreement produces qualifying efficiencies, gives consumers a fair share, imposes only indispensable restrictions, and does not eliminate competition for a substantial part of the products concerned.
Commission Regulation (EU) 2022/720—the Vertical Block Exemption Regulation (VBER)—creates a safe harbour. It generally applies where both parties' relevant market shares do not exceed 30% and the agreement contains no Article 4 hardcore restriction. It applies from 1 June 2022 to 31 May 2034.
A hardcore term removes the block exemption from the whole vertical agreement. It does not itself establish an Article 101 infringement. In Super Bock, Case C-211/22, the Court of Justice stated:
the concepts of ‘hardcore restrictions’ and of ‘restriction by object’ are not conceptually interchangeable and do not necessary overlap. —
Even minimum resale pricing must be examined for sufficient harm in its legal and economic context before it is classified as a restriction by object.
Which resale-price controls are most dangerous?
Article 4(a) VBER treats restricting a buyer's ability to determine its resale price as hardcore. Fixing a price, setting a minimum or range, or prohibiting discounts all qualify. Indirect methods include fixing margins or maximum discounts, conditioning rebates on price observance, minimum advertised prices, threats, delayed supplies, or terminating dealers who discount.
A supplier may generally recommend a resale price or impose a maximum. The protection disappears if incentives or pressure make that figure fixed or minimum in practice. Price monitoring software alone is not resale price maintenance (RPM), but communications and sanctions can establish enforcement. A unilateral wish is not enough: Article 101 requires concurrence of wills, proved from acceptance or conduct.
The Commission's 2022 Vertical Guidelines treat minimum advertised prices as indirect RPM because they prevent dealers from telling customers about lower prices. Those Guidelines are non-binding enforcement guidance, not legislation. Individual Article 101(3) arguments remain possible—for example, a tightly limited launch campaign or genuine additional services—but the parties must prove every exemption condition.
When may territories or customer groups be allocated?
The central distinction is between active sales, where a distributor targets a territory or customer, and passive sales, where it responds to an unsolicited request. A website ordinarily serves passive sales unless it specifically targets another territory or customer group.
Under Article 4(b)–(d) VBER, a supplier can generally restrict a distributor's active sales into a territory or customer group reserved to the supplier or allocated exclusively to no more than five distributors. Broad restraints on passive sales remain hardcore. So do requirements to reject unsolicited foreign orders, obtain approval before serving those customers, redirect orders, restrict supply volumes to local demand, or lose bonuses for cross-border sales.
The permitted details depend on the model:
- In exclusive distribution, certain active-sales protection is possible, but blanket protection from both active and passive sales is not.
- In selective distribution, members may be stopped from selling to unauthorised distributors in the territory where the system operates. They generally cannot be prevented from cross-supplying each other or, at retail level, from selling to end users.
- In any model, a wholesaler can be prevented from selling to end users, a distributor's place of establishment can be controlled, and component buyers can be prevented from supplying components to firms that would use them to make competing goods, within the Regulation's wording.
The concern is market partitioning: vertical arrangements must not recreate national borders or suppress intra-brand competition. The Regulation's precise exceptions mean not all territorial exclusivity is prohibited.
In Beevers Kaas, Case C-581/23, decided on 8 May 2025, the Court clarified the proof needed for an active-sales restriction. Other buyers' inactivity did not establish an agreement. Evidence must show that the supplier invited them to respect the restriction and that they expressly or tacitly acquiesced for the period claimed.
Which online-sales restrictions lose the safe harbour?
Article 4(e) VBER targets restrictions whose object is to prevent effective internet use:
the prevention of the effective use of the internet by the buyer or its customers to sell the contract goods or services ... without prejudice to the possibility of imposing on the buyer: (i) other restrictions of online sales; or (ii) restrictions of online advertising that do not have the object of preventing the use of an entire online advertising channel. —
Hardcore examples include an internet-sales ban; blocking or redirecting foreign visitors; terminating transactions because a payment card shows an out-of-territory address; requiring physical-space sales; demanding approval for individual online transactions; prohibiting any online store; and eliminating an advertising channel such as search engines or price-comparison services.
The Court's judgment in Pierre Fabre, Case C-439/09, illustrates the line. A physical-premises and pharmacist requirement de facto prohibited all internet sales. After an individual examination of the clause, product characteristics, objective and context, the Court treated the unjustified ban as a restriction by object. A genuine online quality requirement is different from disabling the channel.
Different wholesale prices for online and offline sales are no longer automatically hardcore under the 2022 regime. They may support channel-specific investments. They become dangerous when the difference makes online sales unprofitable or financially unsustainable and therefore prevents effective internet use.
Are marketplace bans automatically unlawful?
No. A marketplace ban controls one online route; it need not prevent internet selling. The 2022 Vertical Guidelines say such restrictions can generally remain exempt where the 30% thresholds are met, the buyer can run an effective online store, and online advertising remains available. Quality, brand presentation, anti-counterfeiting, and service requirements may be legitimate.
In Coty Germany, Case C-230/16, the Court examined a selective distribution system for luxury goods and a ban on discernible third-party platforms. It held:
Article 101(1) TFEU must be interpreted as not precluding a contractual clause ... on condition that that clause has the objective of preserving the luxury image of those goods, that it is laid down uniformly and not applied in a discriminatory fashion, and that it is proportionate in the light of the objective pursued. —
That is not a universal approval for every platform ban. Risk rises where the supplier uses the prohibited marketplace itself, exempts selected distributors without objective reason, restricts nearly every practical online route, or where distributors depend on marketplaces to reach customers. Above the market-share thresholds, effects, inter-brand competition, channel importance, cumulative restraints, and less restrictive alternatives require individual assessment.
A practical contract review
For each clause, ask:
- Is there an agreement, or only unilateral conduct?
- Do the supplier and buyer each remain at or below the 30% VBER threshold?
- Does a stated maximum or recommendation become a minimum through incentives, monitoring, threats, or dealer acceptance?
- Is a sales restriction limited to permitted active targeting, or does it suppress unsolicited passive sales?
- Does the selected exclusive, selective, or free-distribution exception actually fit?
- Can the distributor operate a viable online store, reach customers through effective advertising, and complete cross-border orders?
- Is a marketplace or quality rule objective, uniform, proportionate, and consistently applied?
- If the safe harbour is lost, can evidence establish restrictive object or effects—and can every Article 101(3) condition be proved?
Conclusion
Fixed or minimum resale prices, broad passive-sales restraints, absolute territorial protection and ineffective internet selling normally remove the VBER safe harbour. Limited active-sales protection, genuine quality standards and marketplace rules leaving effective online routes open may qualify. The final answer still depends on agreement, object or effects, inter-State trade and any Article 101(3) efficiencies.
Sources
This article provides general legal information, not advice for a specific matter. Laws, facts and procedural deadlines may change the result. Follow the linked primary sources and obtain local advice before acting.