Last year, carwow complained to the CMA that BMW was stopping its dealers listing BMW and MINI cars on the carwow online portal. The CMA carried out an initial assessment. On the back of a change to BMW's policy, the CMA has decided not to start a formal competition investigation.

Competition regulators around the EU are grappling with the question of whether a blanket ban on using online platforms and marketplaces amounts to a ban on so-called 'passive sales'. If yes, such a ban would be problematic, since passive sales to end users can almost never be restricted - end users must be free to purchase products from anywhere in the EU, and the internet is an easy way for them to do so.

It is a question to which the current EU competition rules do not give a definitive answer. The European Commission, taking a more permissive view than some national competition authorities, considers that a blanket ban ought not to be regarded as a hardcore restriction of passive sales.  The CMA has ducked the question here, but the strong implication is that it does not share the Commission's view.

This issue should be resolved later this year, when the EU's highest court (the European Court of Justice) issues its long awaited judgment in an unrelated case referred by the German court. The European Commission is also due to issue its final report in its e-commerce sector inquiry, and it is hoped that this will be accompanied by guidance to help businesses determine their approach to these new and increasingly important sales channels.

There is a difficult balance to be struck between the rights of a brand owner to protect the brand and ensure a suitable (offline or online) customer experience, the rights of retailers to sell online anywhere in the EU, and the rights of customers to shop around or to get an intermediary to do so on their behalf.