In a press release issued on 22 January 2015, the German Federal
Cartel Office ("FCO") announced that it has issued a
decision imposing a fine of € 225,000 on the producer and
distributor of home carbonation systems, SodaStream, for having
abused its dominant position on the market for the refilling of gas
cylinders for carbonated drinks machines by giving customers the
impression that only SodaStream is authorised to refill their gas
In 2006, the FCO had previously found that SodaStream (then
known as Soda Club) had abused its dominant position on the German
market for the refilling of gas cylinders (see VBB on Competition
Law, Volume 2006, No. 3, available at
www.vbb.com). At the time, rather than selling gas cylinders,
Soda Club rented the majority of its gas cylinders to retailers and
consumers. The FCO found that the ownership it thereby retained was
utilised to prohibit companies outside of its distribution network
from refilling the gas cylinders. As a result, the FCO issued an
order on 9 February 2006 instructing Soda Club to permit companies
outside its distribution network to refill cylinders and to attach
a label to the cylinders that informs customers of the fact that
cylinders may be refilled by third parties.
Following appeals lodged by SodaStream, the FCO's decision
of 2006 was upheld by the Higher Regional Court of Düsseldorf
in 2007 (see VBB on Competition Law, Volume 2007, No.7, available
www.vbb.com) and by the German Federal Court of Justice in 2008
(see VBB on Competition Law, Volume 2008, No.3, available at
www.vbb.com), which clarified that the said label had to be
attached to the cylinders for a time period of three years.
It follows from the January 2015 press release that, after the
2008 ruling of the Federal Court of Justice, SodaStream made the
necessary changes to its distribution system. However, through
warnings, safety instructions and exclusions of guarantee,
SodaStream gave customers and business partners the impression that
it alone was authorised to refill the gas cylinders. By way of
example, SodaStream indicated on the shrink film of its gas
cylinders and on the packaging of reserve cylinders that the
cylinders should be refilled exclusively by SodaStream and that
unauthorised refilling by third parties may be risky and
The FCO found that by having engaged in the above practices
SodaStream abused its dominant position on the market for the
refilling of gas cylinders used in carbonated drinks machines and
acted contrary to the 2006 order issued by the FCO. Following the
FCO's findings, SodaStream has committed to end the practices
that were found abusive and to continue attaching, during the next
three years, a label to its gas cylinders that emphasises that such
cylinders can be refilled by third parties.
The FCO's decision is not final. SodaStream could file an
appeal to the Higher Regional Court of Düsseldorf.
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