I.- THE IMPACT OF THE INTERNET ON DISTRIBUTION.
Over the last decade, Internet has brought about substantial changes in consumer habits, and continues to do so, with the creation of new formulas for the sale of products and services. The following data gives us an idea of the dimension of this social and business phenomenon:
In 2013, almost 70% of Spanish homes were connected to the Internet, with the acquisition of goods and services occupying the 11th position in order of the priority given to the use of Internet services. In 2013, 11 million people used this means for the purchase of goods and services (31% of the Spanish population), and although in the European Union the average was 47%, this differential offers a notion of the tendency to follow in Spain in the years to come. In just 6 years, this rate has increased from 18% in 2007 to 31% in 2013. Finally, sales figures by electronic commerce reached 183.110 million Euro in 2012, while in 2007 this figure was only 38.000 million Euro, having increased almost fivefold in five years.
The system of online sales is advancing in various directions. This is on accountof its subjects, since contracting between businesses (B2B) has joined private consumption transactions (B2C) with great force. And from the point of view of the scope of online sales, today they are present in sectors where in the past it would have been difficult to imagine, such as the purchase of a motor car, heavy machinery, furniture etc. This business method is possible due to the technology, payment security in transactions and the facility with which consumers may access the offer of products and services, allowing them to compare and make choices without being physically present in a sales establishment.
However, this scenario affects the traditional distribution model, where in the past the figure of the distributor was essential as the propagator of information, as the active prescriber and vendor of products and services, in the absence of any other efficient means of reaching the consumer and in order to guarantee a quality service. This said, online sales have an effect of territorial permeability so that friction between exclusive distributors are generated, and ultimately said distributors feel that their territory is invaded and that their exclusive right is broken because of the sales generated by the websites of authorised distributors in other territories. Distribution contracts signed at the beginning of the nineties did not contain restrictive clauses relating to online sales, simply because this means was not thought to be a means of trading goods and services on a large scale and because some entrepreneurs did not visualise the future dimension that this sales channel would take on. Notwithstanding this, when electronic commerce started to become more relevant, distribution contracts, especially those of a selective nature, started to include clauses, which prohibited the distributor, either directly or indirectly, from Internet sales.
II.- PROHIBITIVE OR RESTRICTIVE CLAUSES REGARDING INTERNET USE. SCOPE AND EXCEPTIONS.
The exclusive distribution contract in itself supposes a restriction on the freedom of sales and the granting of a right to exclusive and excluding sales to persons authorised by the manufacturer for the commercialisation of its products or services in a determined sector of the market, in exchange for which the latter requires the rendering of these services to be carried out in accordance with certain rules and a minimum sales volume, which justifies the granting of a sales monopoly in a territory. In order to guarantee the effective exclusivity of the right granted, the distributor usually calls for the manufacturer to take the necessary measures to prevent other distributors in different territories and even unauthorised distributors from gaining access to the assigned territory. In the case of distribution contracts and particularly in cases of selective distribution, the manufacturer requires the distributor to dispose of facilities for the sale of products and the provision of services, which are in line with the prestigious and exclusive image associated with the product trademark.
European Union legislation interprets as particularly serious restrictions, and in principle, as prohibited, amongst others, agreements with a distributor of a territory, which prohibits access to its web by potential clients from other territories; the fixing of maximum online sales or cancelling operations with clients outside of the exclusively assigned territory, when orders are received