Germany: Higher Regional Court Of Frankfurt Rules On Restrictions On The Use Of Online Platforms And Price Comparison Websites In The Selective Distribution System Of Deuter

On 22 December 2015, the Higher Regional Court of Frankfurt (the "Court") issued a ruling on appeal concerning the selective distribution system of Deuter, a producer of quality backpacks (see VBB on Competition Law, Volume 2016, No. 1, available at The Court assessed two restrictions imposed by Deuter on the resellers belonging to its selective distribution system: (i) the prohibition to sell Deuter products via the sales platform; and (ii) the obligation to obtain Deuter's authorisation before advertising Deuter products on specific price comparison websites. The appeal was brought by a retailer belonging to the selective distribution system (the "Claimant").

The Court found that, since the Claimant is economically dependent on the product range of Deuter, Deuter has superior market power in the sense of Article 20 of the Act against Restraints of Competition ("GWB") vis-à-vis the Claimant. However, according to the Court, Deuter's prohibition to sell via Amazon does not constitute an abuse of its superior market power pursuant to Article 19 GWB because this prohibition does not discriminate against, or unfairly impede, the Claimant.

First, the Court found that Deuter had applied its prohibition to sell its products via Amazon uniformly and did not discriminate against the Claimant. Second, the Court considered that the prohibition to sell via Amazon did not unfairly impede the Claimant as it reflects a necessary and therefore legitimate element of the selective distribution policy chosen by Deuter.

In support of this second finding, the Court emphasised that Deuter had decided to sell its products only to authorised retailers in the framework of a selective distribution system to which Amazon does not belong. If authorised retailers were allowed to sell through Amazon, the average consumer would assume that Amazon is one of Deuter's authorised retailers, even though Deuter does not have a contractual relationship with Amazon and cannot influence its business practices. This is because, when purchasing through Amazon, consumers have the impression that they are purchasing from Amazon even if the product is sold by an authorised retailer.

The Court further found that the prohibition to use Amazon is needed to ensure that customers are provided with necessary advice and to signal high product quality. Advice is necessary in order to allow the customer to choose the most appropriate model, given the range of designs, sizes and technical features of the backpacks. The Court found that the need to provide such advice cannot be ensured on Amazon (even though Amazon offers advice to select the right size of the backpack on its website). While customers could theoretically visit the website of Deuter to source appropriate information, this requires action on the part of the customer to carry out research and the customer may not know that additional information can be found on the Deuter website. Further, according to the Court, the product image established by Deuter signals high quality. Producers of high quality products have an interest in communicating to consumers that their products are of better than average quality, as purchasing decisions based on insufficient information are often taken only on the basis of price. According to the Court, signalling high product quality is not possible on Amazon, because the uniform presentation of all products, irrespective of their type and quality, does not leave room for differentiation based on brand image.

By contrast, unlike its conclusion concerning the first restriction on the use of Amazon, the Court found that the second restriction concerning the contract clause requiring authorised retailers to obtain Deuter's authorisation to advertise Deuter products on price comparison websites is in violation of Article 19 GWB.

According to the Court, the contract clause comes close to a total prohibition on the use of price comparison websites because Deuter has been very restrictive in granting permission to use price comparison websites and because it is not clear under which conditions permission will be granted. The Court held that the prohibition of the use of price comparison websites strongly restricts the online advertising opportunities of the Claimant, whose competitive position is thereby negatively impacted. The Court considered this to be unfair because price comparison websites do not make any sales but merely allow customers to find retailers that offer a specific product and lead them to the websites of those retailers. According to the Court, this general prohibition cannot be justified by the need to ensure sufficient customer service and to secure the appropriate portrayal of the brand's image, because Deuter could achieve these goals by laying down requirements concerning the website of the retailer.

The Court rejected Deuter's argument that the accumulation of similar product images and prices on price comparison websites suggests the mass availability of the product, which damages the high quality image of the product. The Court found that this would only be a valid argument if the brand had a certain luxury image carrying a notion of exclusivity. In the case of Deuter, the Court found that the brand image stands for high product quality and not luxury, and it is not evident that the image of the product is impacted simply because the potential buyer can see that different models of the product are offered by numerous retailers.

The Court further found that the limitation of competition through the prohibition of the use of price comparison websites could not be justified by the Vertical Agreements Block Exemption Regulation as Deuter had failed to demonstrate that its market share on the German market of quality backpacks sold to retailers does not exceed 30%. An exemption could also not be based on Section 2(1) GWB as the agreement does not allow consumers to have a fair share of the resulting benefit of the agreement. Finally, the fact that some operators of price comparison websites infringe intellectual property rights could not justify a general prohibition of the use of price comparison websites.

Although currently on further appeal, the judgment is a significant contribution to the, thus far, conflicting judicial and administrative case law concerning online sales and advertising in Germany. Concerning restrictions on the use of online platforms by authorised retailers, the judgment adopts a more liberal, and brand-friendly stance than the Bundeskartellamt applied in the Asics and Adidas cases (see VBB on Competition Law, Volume 2015, No. 9 and Volume 2014, No. 7, available at In contrast, the hostile approach of the Court towards restrictions on the use of price comparison websites is more consistent with the findings of the Bundeskartellamt in the Asics decision. 

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