Germany: The Federal Cartel Office published guidelines on the prohibition of price fixing

The Federal Cartel Office (BKartA) released draft guidelines on resale price maintenance on 25 January 2017.

The Federal Cartel Office (BKartA) released draft guidelines on resale price maintenance on 25 January 2017. The guidelines are primarily addressed to the food industry, but the standards will apply on other industries as well. 

Content

The 35-page guideline paper covers primarily the following topics:

• Agreements on fixed and minimum prices in contrast to maximum prices
• Non-binding price recommendations and which measures are prohibited in this context
• Quantity management and action planning between producers and distributors as well as under which circumstances resale price fixings may exceptionally be permitted, guidelines for franchising     
• Margin guarantees and renegotiations, i.e. margin guarantees in advance by the producer or demand in hindsight by the distributer if the margin is deemed too low
• Refusal to supply and cancellation of business relationships, particularly with regard to the price setting of the distributor

The guidelines provide for exemplary cases and accompanying notes, e.g. on the distinction between external distributers, own distributers and commercial distributers.

Small and medium sized companies

The guidelines are explicitly also addressed to small and medium sized companies that may not be advised on antitrust law issues. The paper, for example, also includes an explanation that resale price fixing is prohibited, irrespective of how low the market share of the parties may be.

Outlook

Until 10 March 2017 interested parties may submit comments to the BKartA. Afterwards the BKartA will release a final version on guidelines.

Practical tips by Dr. Dethof

The communication being a draft only at this point in time is also already helpful for compliance measures. Although it is primarily addressed to the food industry, the evaluations are also relevant in other areas and should be obeyed immediately. The guidelines of the BKartA from 2010 are no longer applicable and are expressively called null and void.

LINK "Draft Guidance note on the prohibition of vertical price fixing in the brick-and-mortar food retail sector"