Judgement

Judgements and court decisions

Here you can find different judgements and court decisions and decisions by the cartel offices regarding online-restrictions

 

German Cartel Office: adidas abandons ban on sales via online market places

Press Release: July, 2nd 2014; Bundeskartellamt Deutschland (German Cartel Office)

Extract: After extensive investigations at sporting goods manufacturers and German retailers, adidas was informally notified that its ban on sales via online market places and the restrictions imposed on authorised retailers with regard to search engine advertising gave cause for serious competition concerns. In response to this, adidas submitted an amended version of its conditions of sale for e-commerce, in which it has completely abandoned its ban on sales via online market places. It also clarified that all authorised retailers are free to use adidas brand related terms as search words for search engine advertising such as Google AdWords.

 

Bundeskartellamt takes a critical view of restriction of online distribution by ASICS

Press Release: April, 28th 2014; Bundeskartellamt Deutschland (German Cartel Office)

Extract: The Bundeskartellamt criticizes in particular that the dealers are prohibited without exception from using online marketplaces such as eBay or Amazon. The authority also objects to ASICS prohibiting its dealers from supporting price comparison engines. ASICS does not allow its distributors to use its brand names on the websites of third parties, not even to guide customers to the online shop of an authorised ASICS dealer. The Bundeskartellamt views each of these three prohibitions as an inadmissible hardcore restriction. Taken together they constitute a de facto ban on internet distribution.

 

Other decisions of German Cartel Office in 2013

Proceeding against Amazon: online retailer drops price parity clause

In 2013 the Decision Division initiated proceedings against the online retailer Amazon because of its business model for the Amazon Marketplace, in particular the obli-gation of Marketplace sellers to observe Amazonʼs price parity clause. The proceedings could be terminated that same year after Amazon had removed the price parity clause from all of its contracts with sellers.
The price parity clause prohibited sellers from selling products they offered on Amazon Marketplace cheaper anywhere else on the internet. The prohibition applied to other internet market places, such as eBay, as well as on-line shops owned by the sellers themselves. Since 2012, Amazon had monitored and enforced compliance with its price parity demands. Amongst other things, Amazon threatened to withdraw its permission to sell via
amazon.de.

Sennheiser lifts its ban on sales via Amazon Marketplace

In the autumn of 2013 the Decision Division examined certain clauses of the new selective distribution contracts of Sennheiser Vertriebs- und Service GmbH under competition law.
The clauses contained a ban on marketing via third party platforms: This excluded the sale of Sennheiser products on electronic market places such as eBay or Amazon Marketplace and hence substantially restricted online distribution. The Decision Division came to the conclusion that Sennheiser GmbH, which has generally authorised the Amazon platform as a dealer in its selective distribution system, cannot prohibit its other dealers from selling goods via Amazon Marketplace.
In order to dispel concerns about competition in the market, Sennheiser has lifted its ban on the sale of goods via its dealers on Amazon Marketplace.

Bosch und Siemens Hausgeräte stops dual pricing system

In 2013 Bosch und Siemens Hausgeräte GmbH introduced a new discount system for its dealers. The Decision Division criticised that the system put so-called hybrid dealers at a disadvantage who sold household appliances in both their brick-and-mortar stores and online shops.
On account of the discount system, the more turnover hybrid dealers generated via their online shops, the lower the discount they received. The discount system thus cre-ated incentives for the dealers to limit their online sales. This restricted competition in online trading. Bosch und Siemens Hausgeräte GmbH has informed all its dealers affected in writing that it has discontinued its previous discount system. As a consequence, in future the same discount can be obtained for brick-and-mortar and online sales.

Vertical agreements

The increasing importance of the internet trade is accom-panied by a substantial change in distribution methods. In some cases the manufacturers themselves are starting to sell directly to end consumers. They often critically review their relationship with independent retailers. This relationship is defined by distribution contracts in which the manufacturers lay down their requirements of their distributors. Even if they do contain restrictions, such agreements can greatly help to make distribution more
efficient – e.g. if they aim to achieve an adequate level of presentation and customer advice services.
However, these so-called vertical agreements also pose risks, in particular if competition between manufacturers is already considerably restricted. Against this background the growing internet trade raises many new issues in the application of the law. In 2013, in addition to advising the decision divisions, the General Policy Division promoted the exchange of ideas on these aspects with its European sister authorities, academics and other professional stake-holders by organising specialist conferences and cooperat-ing in international working groups.

Dual pricing systems

Dual pricing systems are price-related restrictions which specifically target online sales. They were the subject of several Bundeskartellamt proceedings in 2013. In a dual pricing system a retailer is granted different purchase prices depending on whether he sells the product online or over-the-counter. With the difference between the two prices a manufacturer can influence sales via the different distribution channels of a retailer and considerably restrict online distribution.
Conditions set by manufacturers on how online distribu-tion should be conducted can also considerably hinder online sales. One example of this is if dealers are prohibited from using platforms such as Amazon, eBay or price comparison sites.

Platforms and best price clauses

With the help of certain sales practices platforms like Amazon or the hotel portal HRS aim at expanding or se-curing their market position, which can hinder competition. In 2013 the Bundeskartellamt conducted several proceed-ings against so-called “best price” clauses. In such clauses the platform operators demand that the suppliers (hotels or retailers) always offer their most favourable prices and conditions on the platform. On first sight such measures appear to benefit consumers but in fact they restrict com-petition between the platforms and make the market en-try of new, innovative suppliers more difficult.