According to a recently published judgment of the lower regional
court of Frankfurt (the "Court") of 18 June 2014, a
general ban on sales by distributors over third party Internet
platforms and a prohibition on the use of price-comparison sites
constitutes a hardcore restriction of competition law.
The case concerns a dispute between a sports bag manufacturer,
Deuter, and one of its resellers. Deuter is one of the world's
leading sports bag manufacturers and has a market share of 45% in
Deuter decided to change its distribution structure and to sell
its bags through a selective distribution system as of 1 March
2013. It sent a letter to all resellers selling its bags announcing
the change in the distribution policy and supplying them with a
selective distribution agreement. According to the agreement, the
authorised resellers were prohibited from: (1) selling Deuter's
bags through Internet platforms and from making Deuter's
products available to such platforms; and (2) using
price-comparison sites or make pricing information available to
such sites. One of Deuter's resellers challenged the
above-mentioned clauses on competition law grounds.
Considering the ban on using third party platforms, the Court
noted that, based on existing case law, it was unclear whether such
a ban could be considered legitimate as different German courts
have taken divergent views on that matter. The Court concluded,
however, that a general ban on using third party platforms is a
hardcore restriction within the meaning of Article 4 (c) VABER,
which applies to restrictions on active or passive sales to
end-users in a selective distribution system.
In particular, the Court noted that paragraph 54 of the Vertical
Guidelines allows a supplier to require that customers do not visit
a distributor's website through a site carrying the name or
logo of a third party platform. This wording suggests that
manufacturers should in principle be free to ban sales over third
party platforms as such platforms usually carry their own logo in
addition to the logo of the manufacturer. The Court found, however,
that such an interpretation of the Vertical Guidelines cannot be
reconciled with either Article 101 TFEU or with Article 4 (c)
VABER. This is especially true after the ECJ's 2011 judgment in
Pierre-Fabre, which held that a ban on online sales is
both a restriction by object and a hardcore restriction under the
VABER. The general ban on sales over third party platforms imposed
by Deuter was considered to be a hardcore restriction as it would
lead to a de facto ban on a significant part of online sales.
The Court took the view that the restriction on sales over third
party platforms introduced by Deuter cannot be justified by any
efficiencies. In any event, even if there were to be some
underlying quality considerations, there should be less restrictive
means to safeguard them, e.g. by devising a set of qualitative
requirements for third party platforms.
Concerning the ban on using price-comparison sites, the Court
took the view that, in light of the above-mentioned considerations,
such a ban is equally unacceptable and should be viewed as a
hardcore restriction within the meaning of Article 4 (b) and (c)
VABER. The Court ordered Deuter to continue supplying the reseller
with Deuter's bags and to stop using the restrictive clauses.
If Deuter failed to do it, it would have to pay € 250,000
for each violation of the Court's order.
The judgment is of particular interest in that it expressly
contradicts the Vertical Guidelines.
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guide to the subject matter. Specialist advice should be sought
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