On 12 December 2017, the German Federal Supreme Court affirmed a decision by the Higher Regional Court of Düsseldorf (see VBB on Competition Law, Volume 2017, No. 4, available at www.vbb.com) which had found that a provision prohibiting online retailers from using price comparison sites violated Article 101 TFEU and could not benefit from the Vertical Restraints Block Exemption (the "VABER") as it was a hardcore restriction according to Article 4(c) of the VABER.
Asics' appeal to the Supreme Court challenged the decision of the Higher Regional Court not to grant Asics leave to appeal its decision (Nichtzulassungsbeschwerde). The Supreme Court, however, rejected Asics' appeal on the grounds that the Higher Regional Court decision did not raise any fundamental questions of law. In the Supreme Court's view, there was no need to clarify any open legal questions, including any questions under EU law that required a referral to the Court of Justice of the European Union (the "ECJ").
Asics had not appealed the finding of the Higher Regional Court that the prohibition against using price comparison sites fell under Article 101(1) TFEU. It argued, however, that the restriction should benefit from an exemption under the VABER. The Supreme Court rejected this argument and held that a total prohibition against using price comparison sites should be considered a prohibition against passive sales and therefore a blacklisted provision under Article 4(c) of the VABER. The Supreme Court's emphasis on the fact that Asics had imposed a total ban on the use of price comparison sites suggests that it might assess differently restrictions on the use of price comparison sites that are based on qualitative criteria.
The Supreme Court took note of the recent judgement of the ECJ in Coty (see VBB on Competition Law, Volume 2017, No. 12, available at www.vbb.com) in which the ECJ had found that a prohibition against using third party platforms, such as Amazon, as a sales channel could be objectively justified in the case of luxury products, and, even if the prohibition were considered a restriction of competition, it could benefit from the VABER because it did not amount to a restriction on passive sales to a particular customer group. The Supreme Court noted first that Coty concerned only luxury products and not "regular" branded products. Moreover, the Supreme Court found that the restrictions imposed by Asics were different from those considered by the ECJ in Coty, as Asics imposed a total ban on the use of price comparison sites and additional restraints, such as a prohibition against using the Asics trademark on third-party sites. In light of this, the Supreme Court concluded that the prohibition against the use of price comparison sites was a restriction on passive sales to customers. The Supreme Court did not address the finding of the ECJ in Coty that a prohibition against certain internet sales channels did not affect a particular customer group, which was a reason why such a prohibition did not amount to a passive sales restriction under Article 4 of the VABER.
This ruling, which is liable to be influential also outside of Germany, suggests a much stricter approach applies to prohibitions on the use of price comparison websites than to prohibitions on sales through third party platforms, even when the market share thresholds of the VABER are not exceeded. Furthermore, it does not appear that the additional restrictions (including restrictions on online advertising) imposed by Asics were necessarily essential to the finding in the case that a prohibition on the use of price comparison websites is a hardcore restriction. In the absence of, inter alia, any explanation as to why a prohibition on the use of price comparison websites should be considered to obviously prevent effective selling over the internet whereas a prohibition on the use of platforms does not, it can be questioned whether the ruling is consistent with Coty.
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.