On 19 January 2018, the German Federal Court of Justice (FCJ) published its judgment concerning an appeal brought by shoe manufacturer ASICS against a fining decision. The FCJ ruled that ASICS had infringed competition law by prohibiting its retailers from participating in price comparison websites. The judgment confirms the strict approach of German courts relating to vertical online sales restrictions.
In August 2015, the German competition authority fined ASICS for restricting internet sales by authorised distributors in its selective distribution system [see our February 2016 Newsletter]. Among other things, the authority objected to a clause which prohibited authorised distributors from participating in price-comparison websites. After ASICS had unsuccessfully appealed the fining decision before the District Court of Düsseldorf, the case was brought before the FCJ.
The FCJ first sets out that price-comparison websites are an important tool for consumers to help them make a choice given the large variety of products, suppliers and prices found on the internet. At the same time, price comparison websites are often used by small retailers to attract customers via low-priced offers. Against this background, the FCJ ruled that ASICS’s absolute ban on participating in price-comparison websites (e.g. irrespective of the quality of the price comparison tool) constituted a restriction of competition which could not be exempted under the Vertical Block Exemption Regulation.
Interestingly enough, the FCJ spent some time distinguishing the facts in ASICS from the facts in the European Court of Justice’s Coty-judgment. In the Coty-judgment, the Court of Justice ruled that suppliers of luxury goods may prohibit their authorised distributors from selling on third party internet platforms such as eBay [see our December 2017 Newsletter]. The FCJ, however, ruled that this reasoning could not be applied to ASICS’s selective distribution system as ASICS’ shoes are not luxury goods and ASICS, unlike Coty, used a combination of contractual clauses to restrict the online sales of its distributors (e.g. that distributors are not allowed to use ASICS’s brand name in online advertisements). Accordingly, the FCJ dismisses ASICS’s appeal.
The FCJ’s judgment shows that restrictions on the use of price comparison tools are not necessarily treated equally to online platform bans under EU competition rules. This is in line with the European Commission’s view, which stated in its e-commerce sector inquiry report that: ‘[M]arketplaces and price comparison tools differ in a number of respects’ and that in a selective distribution system ‘absolute price comparison tool bans which are not linked to quality criteria, potentially restrict the effective use of the internet as a sales channel and may amount to a hardcore restriction‘.
Compliments of Stibbe – a member of the EACC in New York