By a recently published judgment of 5 June 2014, the Higher
Regional Court of Schleswig-Holstein (the "Court") upheld
on appeal a judgment of a lower instance court condemning
restrictions on the use of Internet platforms imposed by Casio
Europe ("Casio"). The Court confirmed that a ban on sales
via Internet platforms such as eBay and Amazon Marketplace imposed
by Casio on its authorised retailers violates Article 101 TFEU and
the equivalent provision under German law, Section 1 of the Act
against Restraints of Competition ("GWB").
Casio operates a multi-channel distribution system for its
digital cameras, under which it sells its cameras to: (i)
wholesalers; (ii) large retailers (such as Karstadt and Saturn);
and (iii) consumers through its own online shop.
Casio requires that wholesalers sell Casio's cameras to
retailers who fulfil certain obligations, including requirements
related to the display, stocking and advertising of the products.
The retailers are entitled to sell through catalogues, newspapers
and their own online shops. However, they are prohibited from
selling through Internet platforms such as eBay and Amazon
Marketplace, as well as from selling to unauthorised third party
The Court held that Casio's prohibition to sell via Internet
platforms such as eBay and Amazon Marketplace has both the object
and effect of restricting competition in violation of Article
101(1) and Section 1 GWB. Furthermore, the Court found no objective
reasons that would justify this restriction under Article 101 (3)
or Section 2 GWB.
Violation of Article 101 (1) TFEU and Section 1
The Court found that the ban restricts competition by object
because it: (i) decreases the price pressure on Casio and its
authorised retailers as it prevents price competition from Internet
platforms such as eBay and Amazon Marketplace; (ii) diverts the
sales that would otherwise be made through the Internet platforms
to Casio's own online shop; and (iii) allows Casio to increase
its presence in the growing e-commerce sector.
According to the Court, the reason why the ban also restricts
competition by effect is because it limits the access of both
retailers and end-customers to e-commerce.
The Court rejected the possibility that quality-based factors
would prevent the ban from infringing Article 101 TFEU/Section 1
GWB. In reaching this conclusion, the Court took the view
that: (i) photographic cameras of the type produced by Casio are
not so technically complex that expert customer service is
required; (ii) Internet platforms such as eBay and Amazon
Marketplace are in any event increasingly professional, no longer
resemble flea markets and ensure a high level of customer
satisfaction because the online transactions are safe; and (iii)
the Internet-related standards which Casio requires its retailers
to meet are very low and easily met by Internet platforms such as
eBay and Amazon Marketplace.
Justification under Article 101 (3) TFEU / Section 2
The Court proceeded to consider whether the ban in question
could be justified on an individual assessment under Article 101
(3) TFEU/Section 2 GWB or under the Vertical Agreement Block
Exemption Regulation ("VABER").
First, the Court took the view that the ban could not be
justified on an individual assessment under Article 101 (3)
TFEU/Section 2 GWB as it does not further technical or economic
Second, the Court concluded that the ban could not be
block-exempted under the VABER because it constituted a hard-core
customer restriction within the meaning of Article 4 (b) VABER.
While acknowledging that the ban did not target any particular
group of customers, the Court took the view that the scope of
application of Article 4 (b) VABER was not limited to restrictions
on sales to specific groups of customers. In this respect, the
Court referred to the English language version of Article 4 (b)
VABER, which specifies as problematic restrictions on the
"customers" to which the buyer may resell the contract
goods, whereas the German language version of Article 4 (b) VABER
instead uses the term "Kundengruppe" (customer group)
instead of "customers". The Court held that it was
preferable to interpret Article 4 (b) VABER on the basis of the
English language version, which was also supported by the French
and Spanish language versions.
This case is a further example of the increasingly expansive,
but at times inconsistent and therefore somewhat confusing, German
case law concerning restrictions on the use of third party
platforms. It is understood that appeals are pending in some of
these cases and guidance from the European Court of Justice would
be welcome to ensure that a coherent approach to this important
issue is applied across the European Union by both national courts
and competition authorities.
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 Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Hotel proprietors are strictly liable, without proof of negligence, for the loss of property brought to the hotel by their guests, unless they can show that the loss resulted from the guest's own negligence.
Managing hotels and associated leisure facilities will inevitably give rise to a wide range of complex commercial and legal issues.
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”
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).