Antitrust Law, with Particular Regard to E-Commerce

One of the particularly interesting decisions of 2017 was undoubtedly the order of the Higher Regional Court of Düsseldorf (OLG Düsseldorf) of 5 April 2017 in the so-called “Asics” case. According to the court, in selective distribution systems a general prohibition imposed on dealers against using price comparison systems infringes antitrust law and is therefore invalid. In cases where franchise systems operate as selective distribution systems, this is therefore of considerable importance; the careful structuring of the online sales system should generally be a primary consideration.

Also in the field of selective distribution, but more generally with regard to online sales, the judgment of the Court of Justice of the European Union of 6 December 2017 in the “Coty” case is of interest. In that judgment, the Court confirmed — at least in the case of “luxury goods” — that a prohibition on involving recognisable external platforms may be permissible. However, what qualifies as a “luxury good” remains far from fully clarified in light of the practice of competition authorities and previous case law. It also remains an open question how this can be reconciled with the previously stricter practice of the German Federal Cartel Office. As a rule, however, a general prohibition on online sales should continue to be regarded as problematic. In the “Coty” case, the Court expressly noted that the clause at issue did not constitute a general prohibition on internet sales.

The European Commission’s sector inquiry into e-commerce of 10 May 2017 is also worth mentioning. In that inquiry, the Commission addressed, among other things, prohibitions on price comparison engines, geo-blocking and best-price clauses.

Prohibition of Resale Price Maintenance in Retail Food Trade
A paper published by the German Federal Cartel Office in July 2017 is likewise noteworthy. It deals, among other things, with agreements on fixed and minimum prices, recommended retail prices, promotional campaigns and subsequent agreements. The paper also discusses price fixing that may exceptionally be permissible under Article 101(3) TFEU / Section 2(1) GWB. According to the Federal Cartel Office, “in sales practice […] vertical resale price maintenance may be justified […] in particular in three areas: the market launch of new products, short-term promotional campaigns in franchise or similar systems, and the elimination of free-rider problems for products requiring intensive advice.”