Competition Law In Optical Retail Price Maintenance Morocco
1. Introduction
Optical retail price maintenance refers to arrangements in which manufacturers, importers, brand owners, wholesalers, or optical-franchise networks seek to control the prices charged by independent opticians and optical retailers for products such as prescription glasses, sunglasses, lenses, frames, contact lenses, and related accessories.
In Morocco, such conduct must be assessed primarily under Law No. 104-12 on Freedom of Prices and Competition, as amended, together with its implementing legislation and the institutional framework governing the Moroccan Competition Council (Conseil de la concurrence).
Price maintenance can arise in several ways:
Resale price maintenance (RPM): a supplier requires opticians to sell frames or lenses at a fixed or minimum resale price.
Recommended pricing: a supplier publishes suggested prices without compelling retailers to follow them.
Online price restrictions: a supplier penalises opticians for discounting products on their websites or online marketplaces.
Franchise price coordination: a franchise network imposes common retail prices across independently operated optical shops.
Promotional restrictions: suppliers prevent retailers from offering discounts, bundled eye-care products, or seasonal promotions.
Selective distribution: manufacturers restrict authorised optical retailers and use pricing rules to control competition between them.
The central legal question is whether a pricing arrangement merely promotes legitimate brand positioning and service quality or unlawfully restricts independent price competition.
Important qualification: The case laws discussed below are principally comparative precedents from EU, French, and other jurisdictions that help explain the legal principles. They should not be mistaken for six confirmed Moroccan judgments specifically concerning optical retail price maintenance.
2. Legal framework in Morocco
A. Law No. 104-12 on Freedom of Prices and Competition
Moroccan law contains a particularly direct prohibition relevant to optical retail price maintenance.
Article 60 expressly prohibits any person from directly or indirectly imposing a minimum resale price for a product or good, a service price, or a commercial margin. This provision is especially relevant where an optical lens manufacturer, eyewear wholesaler, importer, or franchise operator attempts to prevent retailers from discounting.
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The principal provisions are as follows.
| Provision | Legal significance for optical retail |
|---|---|
| Article 2 | Establishes the general principle that prices are determined by free competition, subject to statutory exceptions. |
| Article 6 | Prohibits anticompetitive agreements, concerted practices, and arrangements that restrict competition or interfere with free price formation. |
| Article 7 | Prohibits abuse of dominance and abuse of economic dependence, including imposing minimum resale prices directly or indirectly. |
| Article 9 | Provides a limited exception for qualifying practices that produce economic or technical progress and satisfy the statutory conditions. |
| Article 60 | Directly prohibits imposing minimum resale prices or minimum commercial margins. |
| Article 61 | Addresses unjustified discriminatory commercial terms and certain refusals to deal. |
These provisions must be read together with the implementing rules and any applicable amendments.
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B. Article 6: Agreements restricting price competition
Article 6 may apply when optical suppliers and retailers, competing opticians, or members of a retail network coordinate their conduct to suppress independent pricing.
Examples include:
Several optical retailers agreeing not to sell branded frames below a common price.
A wholesaler obtaining commitments from retailers to follow a common minimum price list.
A trade association circulating a pricing schedule intended to eliminate discount competition.
Competing optical chains agreeing to stop offering discounts on prescription lenses.
The critical distinction is between independent commercial decisions and coordinated conduct. A supplier's unilateral announcement of a price recommendation does not automatically establish an agreement; evidence of acceptance, pressure, monitoring, or implementation may be important.
C. Article 7: Dominance and economic dependence
Article 7 is relevant where a powerful supplier uses its position to impose restrictive pricing conditions, or where an optical retailer is economically dependent on a supplier and lacks equivalent alternatives.
For example, a premium lens supplier might threaten to terminate supplies to an independent optician unless the optician follows a minimum retail price. The legal assessment would consider the supplier's market position, the retailer's dependence, the availability of alternative brands, and the commercial justification for the restriction.
Dominance alone is not unlawful. The issue is whether the undertaking abuses that position in a manner prohibited by law.
D. Articles 60 and 61: Direct and indirect restrictions
Article 60 is particularly important because it addresses the imposition of a minimum resale price directly or indirectly. An arrangement does not become lawful merely because the supplier calls the price a “recommendation.”
Potential evidence of indirect price maintenance includes:
Withdrawal of rebates when retailers discount.
Threats to suspend supply.
Delayed replenishment of popular frames or lenses.
Penalties linked to advertised prices.
Monitoring retailers' prices and demanding corrective action.
Franchise rules that effectively eliminate freedom to set retail prices.
Article 61 may additionally become relevant where commercial conditions are discriminatory and unjustified by genuine differences in consideration or where a supplier uses commercial relationships to disadvantage particular retailers.
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3. Application to the optical retail sector
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A. Branded frames and sunglasses
A manufacturer sets a minimum price for branded frames and penalises retailers who offer discounts. This presents a strong potential Article 60 issue and may also raise Article 6 concerns if an agreement or concerted practice is established.
B. Prescription lenses
A lens supplier requires independent opticians to maintain a fixed minimum margin. Because Article 60 expressly refers to commercial margins, the restriction warrants particular scrutiny even if the final consumer price is not stated expressly.
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C. Online optical sales
A supplier prohibits authorised opticians from advertising lower prices online or uses automated monitoring to penalise discounting. The issue is whether the arrangement restricts price competition rather than merely imposing proportionate, legitimate service standards.
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D. Optical franchise networks
A franchise may standardise branding, store design, training and service quality. But imposing a common minimum resale price across independently operated outlets can raise serious competition-law concerns. The contractual label does not determine the legal outcome.
A separate issue arises when the retailer sells a genuinely integrated package combining frames, lenses, fitting, adjustment and after-sales services. The supplier may have legitimate reasons to define service standards, but those standards should not be used as a pretext for suppressing price competition.
4. Six major case laws relevant to optical retail price maintenance
The following decisions provide comparative guidance on resale price maintenance, distribution restrictions, online sales, and minimum retail pricing. They are not presented as Moroccan optical-sector precedents.
Case 1: Super Bock Bebidas SA v Autoridade da Concorrência (CJEU, Case C-211/22, 2023)
Principle: Minimum resale prices imposed by a supplier on distributors can constitute a serious competition restriction.
The Court of Justice of the European Union considered a supplier's practice of communicating minimum resale prices to distributors, monitoring their conduct, and using commercial incentives or retaliatory measures to encourage compliance.
The judgment addressed how an agreement between supplier and distributors must be established and how minimum resale price restrictions should be characterised under EU competition law.
Application to Morocco: If an eyewear wholesaler sends minimum prices to optical retailers, monitors their compliance, and withdraws rebates from discounting retailers, these facts could help demonstrate indirect imposition under Article 60 and potentially coordinated conduct under Article 6.
The case also cautions against assuming that a supplier's announcement alone necessarily proves an agreement: the evidence of concurrence of wills and implementation matters.
Case 2: Pierre Fabre Dermo-Cosmétique SAS v Président de l'Autorité de la concurrence (CJEU, Case C-439/09, 2011)
Principle: Distribution restrictions that significantly restrict online sales can undermine competition.
The dispute concerned a cosmetics manufacturer's selective distribution system that effectively prevented distributors from selling products online. The Court examined the restriction under EU competition law and the conditions under which selective distribution may be justified.
Application to Morocco: An optical supplier might prohibit authorised opticians from advertising discounted eyewear online or require all online sales to occur at fixed prices. The Pierre Fabre reasoning helps assess whether a distribution restriction unnecessarily limits retailers' ability to compete.
The decision does not establish that every online-sales restriction is automatically unlawful. The nature, scope, and justification of the restriction remain relevant.
Case 3: Coty Germany GmbH v Parfümerie Akzente GmbH (CJEU, Case C-230/16, 2017)
Principle: Selective distribution may be lawful when it satisfies the applicable competition-law conditions, particularly for products whose characteristics justify certain qualitative distribution requirements.
The Court considered whether a luxury-goods supplier could restrict the use of third-party online marketplaces by authorised distributors. It recognised that qualifying selective distribution systems can be compatible with EU competition law.
Application to Morocco: A premium eyewear manufacturer may establish objective requirements concerning product presentation, staff training, fitting services, authenticity, and customer care.
However, Coty is not authority for unrestricted minimum resale price maintenance. A supplier should distinguish legitimate qualitative distribution conditions from rules that dictate the minimum price at which independent retailers may sell.
Case 4: Binon & Cie v SA Agence et Messageries de la Presse (CJEU, Case 243/83, 1985)
Principle: Distribution arrangements must be examined for their effect on competition, including the way they affect independent distributors' commercial freedom.
The case concerned distribution arrangements in the press sector and restrictions associated with the distribution system. It illustrates the importance of examining the substance and competitive consequences of contractual distribution rules.
Application to Morocco: If an optical franchise or distribution agreement requires independent opticians to follow a mandatory retail price list, the authority should examine the practical effect of the contractual terms and how they constrain competition between retailers.
The case is best treated as a supporting distribution-law precedent rather than a direct optical-sector minimum-pricing judgment.
Case 5: Leegin Creative Leather Products, Inc. v. PSKS, Inc. (U.S. Supreme Court, 2007)
Principle: Under U.S. federal antitrust law, minimum resale price maintenance is assessed under the rule of reason rather than being automatically unlawful.
The U.S. Supreme Court reconsidered the earlier Dr. Miles doctrine and recognised that vertical minimum-price restrictions can sometimes encourage retailer services or inter-brand competition, although they can also facilitate anticompetitive outcomes.
Application to Morocco: The economic arguments discussed in Leegin can help explain why an optical supplier might claim that minimum prices support professional fitting, after-sales services, product information, or investment in specialist staff.
However, the U.S. rule-of-reason approach must not be imported into Morocco as if it displaced Article 60's express prohibition. Moroccan statutory law governs the domestic legal assessment.
Case 6: Dr. Miles Medical Co. v. John D. Park & Sons Co. (U.S. Supreme Court, 1911)
Principle: The historic U.S. approach treated minimum resale price maintenance as unlawful under federal antitrust law.
The case concerned a manufacturer's attempt to control the resale prices of its products through contractual arrangements with distributors and retailers. The decision was subsequently overruled by Leegin in 2007.
Application to Morocco: The case remains historically useful for understanding the traditional concern that resale price maintenance eliminates retailers' independent pricing decisions.
For an optical retailer in Morocco, the practical issue is whether a supplier is restricting the retailer's ability to determine its own resale price. Article 60 provides a direct domestic statutory reference, so the analysis does not depend on applying the historic American rule.
5. Additional relevant case laws
For a broader research framework, the following decisions also offer useful comparative principles.
7. Consten and Grundig v Commission (Joined Cases 56/64 and 58/64, 1966)
The European Court of Justice examined exclusive distribution arrangements that restricted competition and partitioned national markets. The judgment is important for understanding how distribution agreements may undermine competitive market access.
Optical-sector relevance: Territorial exclusivity combined with restrictions on discounting or cross-border sales could limit consumer choice and weaken competition between optical retailers.
8. Eturas UAB and Others (CJEU, Case C-74/14, 2016)
The Court considered whether participants using a common online booking system could be held responsible for coordinated conduct following the circulation of a system message limiting discounts.
Optical-sector relevance: A shared optical marketplace or retail software platform that communicates discount restrictions could raise questions about knowledge, participation, and concerted practices. The existence of software or a common message alone does not automatically establish liability; the applicable evidentiary requirements must be met.
These additional cases are comparative authorities, not confirmed Moroccan optical retail decisions.
6. Economic analysis of minimum resale prices
A proper competition assessment should consider how the arrangement affects the market.
| Issue | Potential anticompetitive effect | Possible legitimate consideration |
|---|---|---|
| Minimum prices for frames | Eliminates price discounting | Brand positioning, where relevant and independently lawful |
| Minimum margins on lenses | Raises consumer costs | Transparent remuneration for genuine services, without prohibited price imposition |
| Online price restrictions | Weakens online competition | Objective product safety or service requirements |
| Franchise-wide pricing | Reduces competition between outlets | Genuine integrated-agency arrangements may require separate analysis |
| Supplier rebates linked to prices | Indirectly disciplines discounting | Rebates based on genuine efficiencies unrelated to resale-price compliance |
| Monitoring retail prices | Facilitates enforcement of a pricing policy | Monitoring for intellectual property infringement or product authenticity, if not used to police resale prices |
A. Consumer welfare
Consumers may pay more when competing optical retailers cannot offer discounts. This is especially significant where consumers can readily compare identical frames or lenses across retailers.
B. Non-price competition
Suppliers may argue that price restrictions encourage investments in professional fitting, product demonstrations, or after-sales services. Those benefits must be evaluated carefully and cannot automatically override an express statutory prohibition.
C. Market structure
Relevant evidence includes supplier concentration, brand loyalty, switching costs, availability of substitute frames and lenses, online sales, and the bargaining power of independent opticians.
D. Inter-brand and intra-brand competition
Intra-brand competition means competition between retailers selling the same brand.
Inter-brand competition means competition between different brands.
A restriction may reduce intra-brand competition even where several competing eyewear brands remain available. The presence of inter-brand competition does not itself establish that the restriction complies with Moroccan law.
7. Hypothetical Moroccan case study
Assume that a major importer of premium eyewear supplies 120 independent optical retailers across Morocco.
The importer circulates a minimum price list for frames, requires retailers to advertise at or above the specified price, monitors online listings, and withdraws rebates from retailers offering discounts.
Several independent opticians complain that they cannot compete on price and that consumers pay more for identical products.
Legal analysis
Article 60: The minimum price requirement and penalties for discounting would be central to assessing whether the importer directly or indirectly imposes a minimum resale price.
Article 6: Communications, retailer commitments, and coordinated implementation could support a separate examination of restrictive agreements or concerted practices.
Article 7: If the importer has a dominant position or a retailer is economically dependent on it, the use of commercial pressure may warrant examination as a potential abuse.
Evidence: Investigators could examine distribution agreements, price circulars, emails, rebate conditions, sales data, online price records, and supply suspension notices.
Defences: The importer might rely on product quality, brand positioning, or service standards. Those considerations do not, by themselves, establish a lawful justification for imposing minimum resale prices.
Potential outcome: If the relevant infringement is established, the competent authority could consider the remedies and sanctions available under Moroccan law, subject to the applicable procedure and statutory conditions.
This is a hypothetical illustration, not a report of an actual Moroccan enforcement decision.
8. Enforcement, remedies, and compliance
The Moroccan Competition Council is the principal institution relevant to competition-law enforcement, operating within the statutory framework established by Law No. 104-12 and the legislation governing the Council.
Depending on the facts, procedural posture, and applicable provisions, potential enforcement measures may include:
Investigation of supplier and retailer agreements.
Orders or injunctions to end an established anticompetitive practice.
Interim measures where the statutory requirements for urgency and serious, immediate harm are satisfied.
Financial penalties where authorised by law.
Commitments or negotiated resolutions where the applicable statutory procedure permits them.
Judicial review or other remedies available under the governing procedural rules.
The Council's published guidance on the transaction procedure under Article 37 provides a framework for resolving qualifying competition matters through that procedure. Its availability and suitability depend on the circumstances; it should not be assumed to apply automatically to every price-maintenance allegation.
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Recommended compliance measures for optical businesses
Optical manufacturers, importers, wholesalers, franchise operators, and retailers should:
Remove contractual terms that impose prohibited minimum resale prices or minimum margins.
Ensure that recommended retail prices are genuinely non-binding and are not enforced through threats or commercial penalties.
Separate legitimate product-quality standards from retail-price controls.
Review rebate structures and supply-termination policies for indirect price-maintenance effects.
Train sales teams not to pressure independent retailers to abandon discounting.
Preserve records of pricing communications and distribution agreements for compliance review.
Seek Moroccan competition-law advice before implementing distribution policies across independent retail outlets.
9. Conclusion
Optical retail price maintenance in Morocco is a significant competition-law issue because the statutory framework expressly addresses the imposition of minimum resale prices.
The central provisions are Articles 6, 7, and particularly Article 60 of Law No. 104-12. A supplier's use of recommended prices, rebates, supply restrictions, franchise rules, or online monitoring must be assessed by examining its actual operation rather than its contractual label.
The comparative cases—Super Bock, Pierre Fabre, Coty, Binon, Leegin, Dr. Miles, Consten and Grundig, and Eturas—help illuminate issues of agreement, distribution, online competition, and economic effects. They do not replace Moroccan law or establish that Morocco has adjudicated these particular optical-sector scenarios.
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