Most Read Contributor in Netherlands, February 2017
The effects-based approach towards vertical restraints, as
applied by the Dutch competition authority, is seemingly losing
ground. The European Commission appears to be siding with a long
list of national competition authorities taking a hard line on
vertical restraints. Following the preliminary results of the
antitrust e-commerce sector inquiry, the Commission has launched
three targeted investigations into suspected online sales
restrictions. Most competition authorities have been tackling
similar issues for a while now; most recently in the German
competition authority's publication of draft guidelines on
vertical price fixing in food retail, and the UK competition
authority's warning to online retailers against price-fixing
through automated re-pricing software. Companies are strongly
advised to double-check their distribution agreements and
underlying commercial policies for possible online vertical
restraints. Software providers are advised to check their
compliance programmes too.
The Commission has launched an in-depth investigation into
whether Asus, Denon & Marantz, Philips and Pioneer have
prevented their online retailers from setting their own retail
prices for consumer electronics products This is a topic which must
have been troubling the Commission long before the launch of the
e-commerce sector inquiry, as dawn raids had already been conducted
in 2013 on suspicion of restrictive online sales
practices. According to a speech by Competition Commissioner Vestager in
March 2015, inspections were also carried out at a number of online
retailers around that time.
However, the press release announcing the Commission's
investigation seems to imply that the online retailers involved
will be left untouched. The German competition authority has no
intention of doing this, since its decisional practice showed that
food retailers played a significant role in resale price
maintenance practices. The draft guidance note on vertical price fixing
in food retail expressly stipulates that competition rules apply to
both the supplier's interference with a retailer's pricing
policy and to the retailer's conduct, because the retailer
"ultimately agreed to the suggested price fixing practice
and thus concluded an anti-competitive agreement with the
According to the Commission's press release, the effects of the suspected
price restrictions may have been aggravated by the online
retailers' use of pricing software that automatically adapts
retail prices to those of leading competitors. The UK competition
authority recently issued a warning to online retailers about price-fixing
following its decision in Trod/GB. In that case, two online sellers
agreed not to undercut each other's prices for posters and
frames sold on Amazon's UK website. The online sellers had used
automated repricing software to implement their price-fixing
cartel. The UK competition authority also warned software providers
that they could be in breach of the competition rules if they
assist their customers in using software to facilitate this
It was only a matter of time before the Commission launched a
case-specific investigation into geo-blocking. In March 2015,
Competition Commissioner Vestager mentioned investigations into the alleged
geo-blocking of certain video games sold online for personal
computers. In March 2016, the Commission published its initial
findings on geo-blocking, which suggested that geo-blocking
is widespread throughout Europe (see our newsletter of
April 2016 for more information).
The bilateral agreements between Valve Corporation, owner of the
Steam game distribution platform, and five PC video game publishers
are the first to be targeted for suspected geo-blocking practices;
namely, using an "activation key" to block access to the
games depending on the customer's country of residence.
The Commission is looking into hotel accommodation agreements
concluded between a number of tour operators and hotels which may
contain clauses that discriminate between customers based on
nationality or country of residence. This practice could prevent
customers from benefiting from better deals offered by tour
operators in other countries.
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The competition law enforcement in Turkey is based on private and public enforcement pillars. TCA has sole discretion to enforce the Competition Act whereas the litigations initiated by the victims of anti-competitive conduct are seen in private courts.
The Competition Board concluded its investigation with regard to the booking services provided by Booking.com B.V. and by Bookingdotcom Destek Hizmetleri LLC, operating as the Turkish representative of Booking.com.
The CAT in the UK heard on 17 January 2017 an application by Flynn Pharma Ltd and Flynn Pharma (Holdings) Ltd to suspend the Competition and Markets Authority's direction to reduce the price of an epilepsy drug.
On February 2, 2017, the UK Competition and Markets Authority published The Retail Banking Market Investigation Order 2017.
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