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

24.05.2019 BE law
Europees milieurecht: wat na 26 mei?

Articles - Het domein van milieurecht kent een sterke Europeesrechtelijke inslag. Voor basisregels inzake natuurbescherming, luchtkwaliteit of klimaat, ligt het juridisch zwaartepunt al lang niet meer bij de lidstaten. Reden te meer om in de gaten te houden wat er op EU-niveau in de pijplijn zit en op lidstaten afkomt. Ook na de Europese verkiezingen zal de nieuwe Europese Commissie verschillende initiatieven nemen. Zowel impliciet als expliciet lichtten de Commissie en haar vertegenwoordigers de voorbije maanden al een tipje van de sluier op.

Read more

24.05.2019 NL law
European regulatory initiatives for online platforms and search engines

Short Reads - As part of the digital economy, the rise of online platforms and search engines raises all kinds of legal questions. For example, do bicycle couriers qualify as employees who are entitled to ordinary labour law protections? Or should they be considered self-employed (see our Stibbe website on this issue)? The rise of online platforms also triggers more general legal questions on the relationship between online platforms and their users. Importantly, the European Union is becoming increasingly active in this field.

Read more

21.05.2019 EU law
Part one - GDPR and Public Law - Applicability of GDPR to public bodies

Articles - Since the GDPR became applicable almost one year ago, multiple questions have arisen about its interaction with other fields of law. In this three-part blog series of “GDPR and Public Law”, we discuss three relevant issues of the interaction of GDPR with public law and government. In this blog we discuss the applicability of GDPR to public bodies.

Read more

Our website uses functional cookies for the functioning of the website and analytic cookies that enable us to generate aggregated visitor data. We also use other cookies, such as third party tracking cookies - please indicate whether you agree to the use of these other cookies:

Privacy – en cookieverklaring