Short Reads

Highest German Court rules that ASICS's ban on using price comparison websites violates EU competition law

Highest German Court rules that ASICS's ban on using price comparison

Highest German Court rules that ASICS's ban on using price comparison websites violates EU competition law

01.02.2018 EU law

On 19 January 2018, the German Federal Court of Justice (FCJ) published its judgment concerning an appeal brought by shoe manufacturer ASICS against a fining decision. The FCJ ruled that ASICS had infringed competition law by prohibiting its retailers from participating in price comparison websites. The judgment confirms the strict approach of German courts relating to vertical online sales restrictions.

 

In August 2015, the German competition authority fined ASICS for restricting internet sales by authorised distributors in its selective distribution system [see our February 2016 Newsletter]. Among other things, the authority objected to a clause which prohibited authorised distributors from participating in price-comparison websites. After ASICS had unsuccessfully appealed the fining decision before the District Court of Düsseldorf, the case was brought before the FCJ.

The FCJ first sets out that price-comparison websites are an important tool for consumers to help them make a choice given the large variety of products, suppliers and prices found on the internet. At the same time, price comparison websites are often used by small retailers to attract customers via low-priced offers. Against this background, the FCJ ruled that ASICS's absolute ban on participating in price-comparison websites (e.g. irrespective of the quality of the price comparison tool) constituted a restriction of competition which could not be exempted under the Vertical Block Exemption Regulation.

Interestingly enough, the FCJ spent some time distinguishing the facts in ASICS from the facts in the European Court of Justice's Coty-judgment. In the Coty-judgment, the Court of Justice ruled that suppliers of luxury goods may prohibit their authorised distributors from selling on third party internet platforms such as eBay [see our December 2017 Newsletter]. The FCJ, however, ruled that this reasoning could not be applied to ASICS's selective distribution system as ASICS' shoes are not luxury goods and ASICS, unlike Coty, used a combination of contractual clauses to restrict the online sales of its distributors (e.g. that distributors are not allowed to use ASICS's brand name in online advertisements). Accordingly, the FCJ dismisses ASICS's appeal. 

The FCJ's judgment shows that restrictions on the use of price comparison tools are not necessarily treated equally to online platform bans under EU competition rules. This is in line with the European Commission's view, which stated in its e-commerce sector inquiry report that: '[M]arketplaces and price comparison tools differ in a number of respects' and that in a selective distribution system 'absolute price comparison tool bans which are not linked to quality criteria, potentially restrict the effective use of the internet as a sales channel and may amount to a hardcore restriction'. 

This article was published in the Competition Law Newsletter of January 2018. Other articles in this newsletter:

  1. Dissemination of misleading information on the safety of a medical product can be a "by object" infringement
  2. Qualifying dawn raid documents as 'in scope' or 'out of scope': marginal review by Belgian Court

Team

Related news

20.09.2022 EU law
Launch of Metaverse blog series

Articles - Stibbe launches a new blog series focusing on the legal challenges of the Metaverse. In our upcoming blog posts, we will discuss the legal challenges of NFTs, crypto-assets, Metaverse platforms, crypto exchanges, DAO, and many more.

Read more

28.07.2022 NL law
Zuiver commercieel belang ook gerechtvaardigd belang: Raad van State laat zich er niet over uit

Short Reads - Op 27 juli 2022 heeft de Raad van State bevestigd dat de Autoriteit Persoonsgegevens onterecht een boete van € 575.000 aan VoetbalTV heeft opgelegd. De hoop bestond dat de Afdeling antwoord zou geven op de vraag of de AP terecht of onterecht meent dat een zuiver commercieel belang géén gerechtvaardigd belang kan zijn in de zin van de Algemene Verordening Gegevensbescherming. Het antwoord op deze vraag blijft echter uit.  

Read more

03.08.2022 EU law
Gotta catch ‘em all? Upward referral of ‘killer acquisitions’ upheld

Short Reads - Companies involved in intended or completed M&A transactions falling below EU and national merger notification thresholds should beware that their deals may still catch the European Commission’s eye. The General Court has upheld the Commission’s decision to accept a national referral request regarding Illumina’s acquisition of Grail: a transaction not triggering any of the notification thresholds within the EEA.

Read more

28.07.2022 NL law
Purely commercial interest also a legitimate interest? Council of State leaves the question unanswered.

Short Reads - On 27 July 2022, the Council of State confirmed that the Dutch Data Protection Authority wrongly imposed a €575,000 fine on VoetbalTV. But the Council did not answer the question whether the AP rightly or wrongly believes that a purely commercial interest cannot be a legitimate interest within the meaning of the General Data Protection Regulation.

Read more

06.07.2022 NL law
Highest Dutch court: the postman may still ring twice?

Short Reads - The Dutch Minister of Economic Affairs and Climate Policy was wrong to unblock the ACM’s prohibited merger between postal operators PostNL and Sandd on grounds of public interest. According to the Trade and Industry Appeals Tribunal (CBb), the Minister cannot substitute the ACM’s assessment for its own when considering public interest reasons. Since the Minister did do so in this particular case, the CBb annulled the Minister’s merger clearance.

Read more