Of price restrictions on musical instruments and the draft of a new vertical group exemption regulation
The prohibition of second -hand price bindings remains an important topic in the persecution practice of the competition authorities. This has recently proven this in a procedure regarding the price setting when selling musical instruments and complained about the restrictions on the price competition towards consumers. At the same time, further concretizations are fortunately offered in the draft of the guidelines for the revised vertical group exemption regulations.
The starting point: Notes from the market
In various decisions, the Bundeskartellamt imposed fines against three manufacturers and two dealers from musical instruments in the amount of around EUR 21 million between September 2020 and June 2021. This is said to have occurred both vertical price binding between the manufacturers and horizontal price agreements between the dealers.
Affected companies are Yamaha Music Europe GmbH from Rellingen, Roland Germany GmbH from Rüsselsheim and Fender Musical GmbH from Düsseldorf. Musical instruments dealers are Thomann GmbH from Burgedach and Music Store Professional GmbH from Cologne.
The procedure was initiated in 2018 as a result of information from the market and began searching the companies concerned.
Accused behavior
In the case of vertical price votes, the manufacturers in particular set a certain minimum price for sale to end customers. In the period of almost 12 years, there was no falling in the period between Yamaha and at least the leading musical instrument dealer Thomann and Music Store, and that certain minimum sales prices cannot be fallen below when selling musical instruments to end customers. Yamaha had temporarily used Price-Tracking software for surveillance. If there were redirections of the minimum price, the dealers were pushed to raise the prices again. The market -wide price increase was also communicated for certain dates ("deadlines"). In the event of non -implementation, sanctions such as delivery freezing or termination of the contract were threatened or imposed.
In a similar form there was a vertical price adjustment between Roland and the musical instrument dealers Thomann and Music Store. Here, too, minimum sales prices were set as a so -called street prices, street prices "non -binding Street Prize" (USP), "Web Advertized Price" (WAP) or "Minimum Advertized Price" (MAP) etc. Roland has communicated minimum prices across Germany and required compliance. Specifically, it was required that the customer sales price may not be multiplied by the dealer purchase price with a certain factor. Roland has shown the street prices on his price lists. If these were not adhered to and there was an undershot, the dealers were asked to raise the prices. Here, too, sanctions such as delivery freezing or termination of the contract occurred in individual cases.
Fender also communicated minimum prices compared to musical instrument dealers. Dealers should therefore sell Fender products on the purchase price with a margin of at least 25 percent. Fender communicated this project by phone and in personal conversations. Fender's field service team moved the dealers to adapt the prices if they fall below the minimum price. Furthermore, sanctions such as delivery freezing or conditions of conditions were threatened or imposed.
Most of the manufacturers have only monitored the minimum prices, such as sporadically, such as for sales in shops or individually negotiated prices. In turn, the dealers increasingly pointed out (too) low prices for other musical instrument dealers and complained above a price level that was too low.
In addition to the vertical restrictions on competition, the Bundeskartellamt reprimanded horizontal price agreements between the dealers Thomann and Music Store. In a total of 13 cases in the period, the retailers had made agreements about price increases on selected products, which, according to the Federal Cartel Office's findings, had only a short -term effect.
When setting the fine, the Federal Cartel Office took into account the cooperation between the manufacturers and dealers and made the decisions after mutually agreed procedural procedural (so -called settlement) with the companies concerned.
"Lessons-Learned" and outlook
The musical instrument procedure of the Federal Cartel Office again shows that manufacturers also have to be extremely careful in their communication. Requests to observe certain sales prices or even threats in this regard can justify a violation of the price binding ban in second hand. The design of the price and conditioning system itself should also be taken into account taking into account the antitrust requirements and therefore prevent misunderstandings. With a view to the sometimes difficult -to -practical requirements from decision -making practice, it is gratifying that the European Commission intends to provide further information on the prohibition of price in the guideline design on the overwhelmed group exemption regulations regarding vertical relationships and, in particular, makes it clear that not every agreement on sales prices is an impaired cartel violation. Rather, the competitive effects of price bonds in individual cases must also be taken into account. In which form this design passage can be found in the actual vertical guidelines, which are still in public consultation until the end of September 2021, is still a future music.
