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 NL 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

02.04.2020 NL law
ACM played high stakes and lost: no more fixed network access regulation

Short Reads - The ACM’s failure to meet the requisite standard of proof has led to the fixed networks of Dutch telecom providers KPN and VodafoneZiggo being free from access regulation. The Dutch Trade and Industry Appeals Tribunal ruled that the ACM had failed to demonstrate the existence of collective dominance, and that KPN and VodafoneZiggo would tacitly coordinate their behaviour absent regulation.

Read more

26.03.2020 BE law
​I am suffering significant financial losses as a result of the spread of the corona virus. Is there a possibility of State aid?

Short Reads - COVID-19 brings certain questions to centre stage regarding State aid. In this short read, Peter Wytinck, Sophie Van Besien and Michèle de Clerck discuss the possibility of State aid in case of significant financial losses as a result of the spread of the corona virus.

Read more

02.04.2020 NL law
Claims assigned to a litigation vehicle: who needs to prove what?

Short Reads - Two recent decisions from the Amsterdam Court of Appeal have confirmed that litigation vehicles cannot come empty-handed to the court, and should provide documentation regarding the assignments of claims they submit. The Dutch legal system allows companies and individuals to assign their claims to a “litigation vehicle” or “claims vehicle” that bundles those claims into a single action. In its decisions of 10 March 2020, the Court of Appeal ruled that it is up to litigation vehicles to prove that the assignments can be invoked against the debtor. 

Read more

10.03.2020 NL law
De AVG staat niet in de weg aan de verwerking van persoonsgegevens door een toezichthouder tijdens een bedrijfsbezoek

Short Reads - Bedrijven die met toezicht worden geconfronteerd, zijn gehouden op verzoek van een toezichthouder in beginsel alle informatie te verstrekken. Met de komst van de Algemene verordening gegevensbescherming (AVG) is in de praktijk de vraag opgekomen of een toezichthouder bevoegd is om persoonsgegevens die onderdeel uitmaken van de gevraagde informatie te verwerken.

Read more

02.04.2020 NL law
EU competition policy agenda: full to the brim

Short Reads - The European Commission’s competition policy agenda stretches to 2024 and contains plans for many new or revised rules and guidelines. Recent publications, such as the New Industrial Strategy for Europe, shed more light on the Commission’s initiatives and their possible impact on parties from both inside and outside the European Union (EU). These new initiatives include temporary state aid rules to address the effects of the Corona crisis, consultations on the Block Exemption Regulations, and new measures in respect of (primarily) third-country companies.

Read more

05.03.2020 NL law
CBb confirms: no cartel fine, still interest to appeal cartel decision

Short Reads - Companies can challenge a decision establishing that they committed a competition law violation, even if no fine was imposed on them. The CBb – the highest court for public enforcement of cartel cases – recently confirmed that the absence of a fine does not affect a company’s interest to appeal. Consequently, parent companies held liable for a subsidiary’s cartel infringement can still challenge a cartel decision, irrespective of whether fines were imposed on them separately.

Read more

This website uses cookies. Some of these cookies are essential for the technical functioning of our website and you cannot disable these cookies if you want to read our website. We also use functional cookies to ensure the website functions properly and analytical cookies to personalise content and to analyse our traffic. You can either accept or refuse these functional and analytical cookies.

Privacy – en cookieverklaring