Beware of vertical price bonds!
Current fine decision of the Federal Cartel Office underlines antitrust importance
In business there is a predominant commercial guiding principle: "The customer is king!" But what happens if the customer cannot benefit from free competitive prices from the dealer, but the manufacturer specifies the end consumer price to the dealers?!
People in the antitrust of antitrust law often think of antitrust law on horizontal cartels, i.e. agreements, agreements and coordinated behaviors between companies in the same competitive level as a price agreement or an area division.
However, what is often not taken into account: The German and European antitrust ban not only detects agreements limiting competition at the horizontal level, but also those in the vertical relationship, i.e. in delivery and performance relationships between companies at different economic levels. In the vertical ratio, the cartel ban is subjected to both so -called vertical price bonds (also called second -hand price binding ban) as well as other coordinated behaviors that are suitable to carry out such a binding effect in fact.
It is currently more important for companies than ever to deal with the ban on the price binding of the second hand! The topicality of the price binding ban is shown by a recent decision by the Federal Cartel Office of March 13, 2024. In this, the Federal Cartel Office against the manufacturer of work and protective clothing Pfanner from Austria imposed a fine of 783,900 euros due to vertical price binding. The President of the Federal Cartel Office Andreas Mundt commented on the case as follows: "Non -binding recommendations are allowed, but retailers must be able to set their prices independently and free of the manufacturer's specifications. Vertical price ties as in the present case are generally at the expense of consumers and often lead to the fact that they have to pay excessive prices. 1970s are forbidden, consistent. "
All of this is reason enough to take a closer look at the ban on vertical price ties. But what does the Bundeskartellamt mean by vertical price bonds? In the case of a second -hand price binding, the customer (the "second hand") is made by the supplier (the "first hand") price specifications when reselling the products or services. In this respect, the current Pfanner case can serve as an example:
Manufacturer A, which produces and sells a popular high -quality branded product in the form of professional protective clothing such as helmets, protective suits or glasses, prohibits the retailer B, who successfully offers this brand product in its (inpatient) shops, to drive it to its end customers below a certain price - for example. At best, natural discounts should be conceivable, such as the free addition of safety glasses or a T-shirt for buying a more expensive product. Traders B agree because he fears that it is sanctioned by manufacturer A by a delivery freezer or other unfavorable delivery conditions. Perhaps manufacturers A not only prohibits retailers B such a procedure, but also retailers C and D and maybe manufacturers A do not trust the loyalty of its business partners, but even lets them monitor them through comprehensive monitoring and test buyers.
Now what would the effect of such a price bond be? The price competition between dealer B, C and D would actually be limited or even in some cases completely lifted. The customer's chance that he benefits from a particularly cheap offer as a result of free competition would be excluded. One could say a violation of the meaning and purpose of the antitrust ban par excellence The European Court of Justice has also determined that experience has shown that the manufacturer's competition is also reduced by eliminating the price competition at the dealer level. In addition, artificial price transparency also promotes horizontal agreements between the dealers [EuGH-C-211/22, ECLI: EU: C: 2023: 529-Super Bock Bebidas; EU Kom, guidelines Rn. 196].
It is therefore not surprising that such vertical price bonds are already considered in principle as a core restriction and that it is not possible to enjoy a general antitrust exemption according to the European group exemption regulations for vertical restrictions.
As a rule, however, maximum price bonds , which are in any case exemption in the scope of the European Group Exemination Ordinance. Non-binding retail price is also permissible, provided that these do not actually have an effect as a result of the exercise of pressure or the granting of incentives, such as fixed or minimum sales prices.
But be careful! The cartel ban knows no gravity. In our case, its vertical effect is not only from top to bottom, but also in the opposite direction. A good example of this are so -called most prolongation clauses, which are not automatically anti -anti -anti -anti -anti -legal rights, which, however, are quite challenging in their assessment due to the complex decision -making practice. These are agreements in which a manufacturer appeals to a dealer not to grant his dealer competitors more cheaper than him. Such agreements are also generally suitable to restrict free competition at the expense of the end customer.
In contrast to horizontal restrictions on competition, vertical restrictions on competition can also go hand in hand with positive effects that can justify their existence. This becomes clear from the case of a problem, which is referred to by the Federal Cartel Office as a "free-river problem" and is accepted in individual cases as justification for a vertical price agreement. This problem is particularly evident in industries with inpatient sales, in which a customer requires special consulting performance to choose a suitable product. Resourceful customers often go to a specialty shop to claim specialist advice. However, you then acquire the desired product online from another provider who was able to offer significantly cheaper prices due to the cheaper online cost structure. In certain cases, minimum price agreements about an individual case exemption are therefore permitted to avoid a free -ridge problem. According to the European Commission, the supplier has to prove for individual exemption that the risk of free -board driving actually exists that the price binding offers enough incentives for investments in consulting services before the sale and that there are no realistic, less restrictive alternatives. Even according to the statements of the Federal Cartel Office, vertical price ties in individual cases may be permissible, for example, if they are essential to improve the production of goods. A vertical price bond as in the truest sense of the word "in the book", the German legislator also cast in the form of law for cultural protection reasons with the national exception of the Book Prize Binding Act (BuchPrG).
Whether the positive effects of a second -hand price binding are a factual justification or whether it is a non -acceptable violation of the cartel ban should therefore be assessed in individual cases by a antitrust lawyer. We are happy to help you!
