Doppelpreissysteme: Ausgewählte Rechts- und Anwendungsfragen zur Entscheidungspraxis des Bundeskartellamtes

Abstract

Dual pricing schemes: Reflections on the position of the German Federal Cartel Office in light of recent case law

The German Federal Cartel Office (FCO) qualifies dual pricing schemes – granting independent retailers less favourable purchasing prices when also reselling products online – as hard core restriction. This is in line with the reasoning of the European Commission (Commission) as outlined in its Vertical Guidelines. The article analyses whether this assessment needs to be revised in light of the decision by the European Court of Justice in Cartes Bancaires as well as the FCO’s recent decision against ASICS.

Restrictions of online sales received significant scrutiny by the FCO in the past years, putting the German enforcement activities far ahead of those by the Commission or other national European regulators. The number of German decisions and settlements concerning online sales must, however, not conceal that many questions around the competitive impact of online resale conditions have not yet been thoroughly analysed and determined. Presumably the e-commerce sector inquiry launched by the Commission will contribute significantly to a more a profound assessment of such conditions and their impact on competition.

The European Court of Justice suggests that – absent a total ban on internet sales – conditions to sell online have to undergo a more nuanced evaluation as to whether they indeed restrict competition by their very nature and hence qualify as “restrictions by object”. The FCO, in its latest decision against ASICS, takes a different approach when it considers certain conditions to sell online as restrictions by object and subsequently puts them through the additional test whether they have the potential to significantly restrict competition (“Wesentlichkeitsprüfung”), in order to eventually consider them hard core restraints. The article concludes that even though this assessment order is dogmatically incorrect, the FCO seems to, inadvertently, introduce a test that could be put to use when evaluating whether conditions for online sales constitute a restriction by object or by effect in a first step. Provided, however, that this test is applied correctly. For certain dual pricing schemes a revised assessment, i. e. a qualification as restriction by effect as opposed to restriction by object, would be of significant practical importance: The German decision-making practice so far fails to give indications as to how such schemes could be lawfully implemented in practice. A more balanced approach could take note of the different forms of dual pricing schemes, quantitative difference of the purchase prices for reselling offline/online as well as the motives of the brand owner when introducing such schemes. The current form based position of the FCO incorrectly suggests that brand owners could not even request information from their retailers as to the ratio in which they sell online/offline, nor could they submit pure online dealers to different purchasing terms than offline or hybrid retailers. Equal treatment of pure players can, however, not be requested by application of the EU or national cartel prohibition: Absent a position of market dominance (or under German law of relative market strength) unilateral conduct by brand owners – allegedly discriminating or not – is not subject to competition law scrutiny.