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Supreme Court (BGH) confirms Federal Cartel Office (Bundeskartellamt): ASICS may not prohibit dealers from using price comparison machines

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Germany

ASICS is generally not allowed to forbid dealers of its own products to use price comparison machines, according to the Federal Court of Justice in a decision published in December 2017.
 
Price search engines are an important means for consumers to search specifically for which dealer offers certain products at which conditions, due to the large range of products on the Internet and the large number of suppliers.
 
General prohibitions of using price comparison engines are per-se prohibitions that apply regardless of the design of the specific price comparison engine and thus exist regardless of quality requirements. Such a prohibition is inadmissible as a core restriction of Internet sales under European law.
 
No submission to the European Court of Justice (ECJ)
 
Whether a general prohibition of the support of price comparison machines has the purpose of restricting passive sales to end consumers by the retailer is not doubtful in the opinion of the Federal Court of Justice. Therefore, a referral to the ECJ is not necessary, even if this question has not yet been clearly answered by the ECJ.
 
The ECJ had already dealt decisively with the restriction of online sales by retailers through a selective distribution system in the cases of Pierre Fabre (ECJ, ruling of 13 October 2011, C-439/09) and Coty (ECJ, ruling of 6 December 2017, C-230/16). According to this ruling, manufacturers of branded products cannot prohibit their retailers from online distribution (Pierre Fabre), but they can prohibit distribution via online marketplaces (Coty), at least as far as luxury goods are concerned.
 
Decision of the Bundeskartellamt confirmed
 
With the now published decision the Federal Court of Justice confirmed in the last instance the Bundeskartellamt's decision of 2015, which had already clearly expressed its support for the pro-competitive effect of Internet sales and its advantages for consumers. In September 2011, the Federal Cartel Office had initiated proceedings against ASICS, Germany's market leader in running shoes. Even before the proceedings were concluded, however, ASICS waived its right to continue using the selective distribution agreements.
 
Links:
 
Decision of the BGH of 12 December 2017 Entscheidung des BGH vom 12. Dezember 2017
 
Decision OLG Düsseldorf of 5 April 2017 Entscheidung OLG Düsseldorf vom 5. April 2017
 
Bundeskartellamt decision of 26 August 2015 Entscheidung Bundeskartellamt vom 26. August 2015

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Antitrust