Antitrust, especially e-commerce

8. Jan 2018 News

A general prohibition against dealers from selectively distributing through use price comparison machines was determined void because it was classified as antitrust-violating. As far as “franchise systems” qualify as “selective distribution systems,” this is highly relevant; In general, careful management of Internet sales must be done.

Also interesting for the law regarding selective distribution and Internet sales in general is the judgment of the European Court of Justice in the matter of “Coty” of December 6, 2017:

In this case, the ECJ confirmed that prohibitions of third party platforms for “luxury goods” are not per se void. The legal definition of “luxury goods”, however, remains relatively open against the background of the previous case law and the praxis of antitrust authorities.  Several other questions remain unanswered, especially against the background of the former and more stringent line of the German Federal Cartel Office (Bundeskartellamt). A complete ban on internet distribution is always likely problematic; in the case of Coty, however, the ECJ did not have to deal with a complete ban of Internet sales.

In addition to these cases, the final report on the sector inquiry of the European Commission on e-commerce of 10 May 2017 is worth mentioning. The Commission is concerned with search engine bans, geo-blocking and best-price clauses.

Price binding ban in the stationary food retail trade

The “Instructions on the prohibition of price fixing in the area of ​​stationary food retailing” published by the Bundeskartellamt in July 2017 is noteworthy. This relates to agreements for fixed and minimum prices, non-binding price recommendations, quantity management, action planning and margin guarantees, plus renegotiations.  The exceptional admissibility of price commitments in individual cases is discussed particularly in accordance with Article 103 (3) TFEU / Article 2 (1) GWB. According to the Bundeskartellamt, “the justification for […] vertical price maintenance is […] conceivable in three sales scenarios: the market launch of new products, short-term special offers in franchise or franchise-like systems and the avoidance of free-rider problems with advice-intensive products.”

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