Germany: The Higher Regional Court Of Berlin Upholds Decision Of Lower Court On The Prohibition Of Sales Over eBay

As reported in the last issue of VBB on Competition Law (see VBB on Competition Law, Volume 2013, No. 9, available at, on 19 September 2013 the higher regional court of Berlin handed down a judgment concerning the prohibition of sales over eBay in the context of a selective distribution system operated by Sternjakob.

The selective distribution system concerned high quality school bags sold under the brand name "Scout". Authorised dealers were allowed to sell the schoolbags in their stores and over their own websites, but Sternjakob required authorised dealers not to sell the school bags over eBay or similar platforms. Products belonging to the preceding year's collection sold by authorised dealers ("out-of-collection products"), as well as special products and end-of-stock products, were sold by Sternjakob to a discount chain.

The higher regional court of Berlin held that it can be legitimate to prohibit sales by authorised dealers over eBay in a selective distribution system. According to the court, this is because, in particular, sales over eBay (including eBay shops) may affect the quality image of a product as eBay is often perceived as being similar to a flea market and is also associated with the sale of counterfeit goods. The court held that not all platforms necessarily have this quality-tarnishing image, for example platforms that target quality-conscious consumers, but eBay is not one of these quality platforms.

In order to be legitimate, the court held that the prohibition of sales over eBay must be applied in a non-discriminatory way. In particular, (i) no authorised dealers must be entitled to sell over eBay; and (ii) the supplier must not sell the products sold through its selective distribution system also through distribution channels that do not fulfil quality requirements imposed on authorised dealers, for example, through a discount chain which creates the risk of a loss of quality image.

A prohibition of sales over eBay by authorised dealers may still be seen as non-discriminatory if the products are sold outside of the selective distribution system in the following three situations:

  1. The sales outside of the selective distribution network are carried out by sellers other than the supplier;
  1. The sales outside of the selective distribution network are carried out by the supplier but only sporadically; and
  1. The sales made by the supplier outside of the selective distribution network concern only out-of-collection products, special products or end-of-stock products and, in addition, the supplier communicates clearly to the public that the sales outside of the selective distribution network concern only these limited types of products.

As regards (1), which was not strictly relevant to the facts of the case at hand, the court cited in support two previous rulings of the EU Court of Justice (ECJ) in the Cartier and VAG-Handlerbeirat cases. In the Cartier case, the ECJ held that the legitimacy of the selective distribution system created in the EU by Cartier was not compromised by the fact that Swiss dealers, which - according to Swiss law - could not be obliged to sell only to authorised dealers, sold the products to unauthorised dealers in the EU. In the VAG-Handlerbeirat case, the ECJ upheld the validity of a selective distribution system created by Volkswagen, despite the fact that Volkswagen products were sold outside of the authorised network because the unauthorised sales were made by authorised dealers selling Volkswagen products in breach of their distribution contracts.

As regards (2), the court observed that sporadic sales by the supplier outside the authorised network are in principle not problematic according to the ECJ decision in Copad/Dior. In the case at hand, however, the sales by Sternjakob to the discount chain were not carried out only sporadically as the supplier sold the products continuously through the discount chain during the period 2008-2013. In this way, it tarnished the quality image of the products. The fact that the sales through the discount chain amounted to only a minor proportion of the supplier's revenue was, in the eyes of the court, irrelevant.

As regards (3), the court held that Sternjakob had not complied with the requirement to clearly communicate to the public that the sales outside of the distribution network concerned only the limited types of products listed above. In the case at hand, the court found that, based on the advertising leaflets of the discount chain supplied with products by Sternjakob, consumers could not have concluded that the supply was limited to out-of-collection products, special items and end-of-stock products.

In conclusion, the court held that, in view of the nature and extent of the sales by Sternjakob to the discount chain, the prohibition of sales by authorised dealers over eBay was not legitimate. The court qualified the prohibition as a hardcore restriction of competition and a restriction by object. The restriction at hand was particularly serious as it affected sales over the Internet. More particularly, the court viewed the restriction as a customer restriction as it was intended to restrict sales to a particular customer group, i.e. consumers buying products over the Internet. The court went so far as to indicate that a discriminatory application of a selective distribution system amounts to a hardcore restriction and restriction by object.

Concluding that the prohibition of sales by authorised dealers over eBay was a hardcore restriction and restriction by object, the court held that neither the Vertical Agreements Block Exemption nor the De Minimis Notice could be applied in this case.

As a remedy, the court ordered the supplier to cease requiring the relevant dealer to stop sales over eBay as a condition of obtaining supplies and damages were granted to the relevant dealer.

By way of comment, it should be recalled that paragraph 54 of the Vertical Guidelines suggests that a prohibition on sales by authorised dealers through third party platforms is consistent with the Vertical Agreements Block Exemption. Nonetheless, those Guidelines do not consider the implications of a supplier which imposes such a prohibition itself supplying resellers which do not meet the criteria required for admission to its selective distribution system. Therefore, the ruling of the court in this case is not necessarily inconsistent with the guidance of the European Commission.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions