Die Geoblocking-Verordnung im Kontext des europäischen Kartellrechts und ihre Auswirkungen auf Vertriebsverträge

Abstract

The Geoblocking Regulation in the context of European antitrust law and its effects on distribution agreements

In this paper the authors examine the interaction between the EU Geoblocking Regulation (“regulation on unjustified geoblocking and other forms of discrimination”) and European antitrust law.

The Geoblocking Regulation’s focus lies on the prohibitions of discrimination pursuant to the Articles 3, 4 and 5, which only cover unilateral behaviour by traders towards their end-customers. From an antitrust law perspective such unilateral conduct can only be subject to abuse control under Article 102 TFEU (Treaty on the Functioning of the European Union) and Sections 19, 20 ARC (Act against Restraints of Competition). However, Art. 6 (2) Geoblocking Regulation extends the scope of application of the prohibitions of discrimination to the upstream relationship between the manufacturer/supplier and the trader selling to the end-customer by nullifying passive sales restrictions in distribution agreements insofar as the trader is obliged by the contractual provision to violate Art. 3, 4 or 5 of the Geoblocking Regulation. Since passive sales restrictions are often void because of a violation of the cartel prohibition, the number of cases in which Art. 6 (2) Geoblocking Regulation has a distinct “raison d'être” seems to be limited. This indicates a parallelism between antitrust law and the Geoblocking Regulation, from which Art. 6 (2) rarely deviates. However, our examination of typical distribution agreements indicates a not inconsiderable number of case constellations in which the evaluations of antitrust law differ from those of the Geoblocking Regulation.

Contradictory results can therefore arise: Not everything that is allowed under European antitrust law is also permitted under the Geoblocking Regulation. E.g., passive sales restrictions which may be exempted from the ban on cartels pursuant to Art. 101 (3) TFEU may nevertheless be void subsequent to Art. 6 (2) Geoblocking Regulation. Likewise, agreements on passive sales restrictions with subsidiaries, commercial and commission agents may be invalid due to a geoblocking violation despite their admissibility under EU antitrust law.

It is theses exceptions that must be kept in mind when reviewing distribution agreements. As the legal assessments under EU antitrust law and the Geoblocking Regulation are not always consistent, both regulatory regimes should be kept in mind when reviewing distribution agreements. Apart from the fact that a violation of the Geoblocking Regulation can lead to the invalidity of contractual clauses – despite their admissibility under EU competition law – the legal consequence of a violation of the Geoblocking Regulation in the form of a fine can affect both the trader/distributor and the supplier. The German law on administrative offences (OWiG) allows the sanctioning of all parties involved in a geoblocking violation according to § 14 OWiG, regardless of whether they directly violate the law. The addressees of a fine within the meaning of § 149 (1c) German Telecommunications Act (TKG) can therefore be both the trader/distributor who discriminates against the end customer and the supplier who agrees a passive sales restriction with the trader/distributor. The supplier can be held responsible as an instigator or accomplice to the offence. A liability of the supplier for organizational negligence within the meaning of Article 130 OWiG may also be possible. However, according to the view taken here, double sanctioning under antitrust law and under the Geoblocking Regulation must be rejected on the basis if the ne bis in idem principle if the sanctioning is based on the same facts and the same infringement.