Articles

German Competition Authority fined ASICS for restricting Internet sales of its distributors

German Competition Authority fined ASICS for restricting Internet sales of its distributors

German Competition Authority fined ASICS for restricting Internet sales of its distributors

02.02.2016 NL law

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:

  1. Court of Justice confirmed independence of EU and national leniency programmes
  2. Court of Justice reduced fine imposed on Galp Energía España and acknowledged excessive duration of General Court proceedings
  3. Court of Justice clarified the concept of a concerted practice for unilateral announcements
  4. Court of Justice dismissed Toshiba's appeal in the power transformers cartel case
  5. Belgium's "excess profit" tax scheme qualified as illegal state aid

Team

Related news

18.02.2019 NL law
Brexit and data protection: preparing for a 'no-deal'

Short Reads - As it stands, the UK will exit the European Union at midnight on 29 March 2019. Therefore, businesses within the UK, or with trade relations with the UK, would be best advised to assume that a no-deal Brexit is inevitable. The exchange of personal data  within the EU is governed by the General Data Protection Regulation (GDPR). In a no-deal Brexit, the GDPR will cease to be applicable in the UK upon its EU exit.

Read more

07.02.2019 NL law
The need for speed in mergers is no reason to ignore rights of defence

Short Reads - On 16 January 2019, the European Court of Justice clarified the procedural guarantees the European Commission needs to provide to merging parties during merger reviews. According to the Court of Justice, the General Court (GC) had rightly annulled the Commission's decision to prohibit the merger of UPS and TNT. UPS's right of defence had been infringed because the Commission had failed to share the final version of the econometric model with UPS before adopting its prohibition decision.

Read more

07.02.2019 NL law
The ACM follows EU approach in its first pharmaceutical merger

Short Reads - The Dutch Authority for Consumers and Markets (ACM) recently reviewed its first merger between two pharmaceutical companies. In its conditional clearance of Aurobindo's acquisition of certain European Apotex assets, the ACM followed the European Commission's approach in assessing the merger's impact on competition. Companies will welcome the news that pharma mergers will be reviewed in a similar fashion, irrespective of whether the ACM or the European Commission conducts the review.

Read more

07.02.2019 EU law
Digitisation and competition law: past, present and future

Short Reads - It is nearly time for the European Commission to reveal its course of action in digitisation and competition law. Feedback from a public consultation and the recent conference on 'Shaping competition policy in the era of digitisation' together with the upcoming expert panel's report on the future challenges of digitisation for competition policy are likely to shape the Commission's course of action.

Read more

07.02.2019 NL law
Follow-on cartel damages claim dismissed: don't bury courts under paper work

Short Reads - A recent ruling by the Dutch Court of Appeal confirmed that claimants will need to sufficiently substantiate their claim that they suffered loss due to a cartel, even in follow-on cases. Despite a presumption that sales or service contracts concluded during the cartel period have been affected by the cartel, claimants will still need to provide the courts with concrete, detailed and uncluttered information showing (i) which party purchased (ii) which products from (iii) which manufacturer for (iv) which amount, preferably with copies of the relevant agreements.

Read more

Our website uses cookies: third party analytics cookies to best adapt our website to your needs & cookies to enable social media functionalities. For more information on the use of cookies, please check our Privacy and Cookie Policy. Please note that you can change your cookie opt-ins at any time via your browser settings.

Privacy – en cookieverklaring