On 13 January 2016, the German Competition Authority ("Bundeskartellamt") published the non-confidential version of the infringement decision relating to ASICS, a manufacturer of sports clothing and running shoes. ASICS was fined for restricting Internet sales of authorised distributors in its selective distribution system between 2012 and 2015. The decision shows the continued strict approach of the Bundeskartellamt in the field of e-commerce.
In 2012, ASICS introduced a new selective distribution system in which it prohibited its distributors from using ASICS's brand name in online advertisements and banned them from partaking in price-comparison websites. Moreover, distributors were not allowed to sell ASICS goods on Internet platforms such as Amazon, Bol.com or eBay.
The Bundeskartellamt entered into negotiations with several sporting goods manufacturers over their distribution policies in 2013. During these discussions, an amicable solution was reached with Adidas but no compromise could be made with ASICS. Consequently, the Bundeskartellamt adopted an infringement decision on 26 August 2015 and subsequently a non-confidential version was published on 13 January 2016.
In its decision, the Bundeskartellamt made clear that constraints on the online use of the ASICS brand name and the ban on the use of price comparison websites were prone to restrict intra-brand competition of ASICS goods. In this regard, specific attention was paid to the effects on small and medium sized distributors, who cannot compete effectively without access to price comparison websites and advertising services such as Google AdWords. The Bundeskartellamt ultimately did not find an infringement relating to the ban on the use of Internet platforms but suggested that such restriction was not allowed.
The strict approach of the Bundeskartellamt stands in stark contrast with the attitude of certain other national competition authorities ("NCAs") in this field. For example, the president of the Dutch Authority for Consumers and Markets stated that regulatory authorities need to exercise restraint in qualifying vertical agreements, which restrict Internet sales, as hardcore violations of competition law. Although the European Commission recently commenced a sector enquiry into e-commerce, the diverging approaches of NCAs to restrictions of Internet sales are unlikely to disappear soon. As such, companies may want to tailor their distribution policies to the national competition laws.
This article was published in the Competition Law Newsletter of February 2016. Other articles in this newsletter:
- Court of Justice confirmed independence of EU and national leniency programmes
- Court of Justice reduced fine imposed on Galp Energía España and acknowledged excessive duration of General Court proceedings
- Court of Justice clarified the concept of a concerted practice for unilateral announcements
- Court of Justice dismissed Toshiba's appeal in the power transformers cartel case
- Belgium's "excess profit" tax scheme qualified as illegal state aid