Further fine imposed for resale price maintenance in mattress case

The Bundeskartellamt has fined Metzeler Schaum GmbH 3.38 million euros for imposing resale price maintenance on retailers selling its products. From early 2007 to July 2011 representatives of Metzeler had repeatedly agreed with the company’s retailers that they should generally offer certain mattresses in their brick-and-mortar stores and online at the sales prices set by the manufacturer.

Andreas Mundt, President of the Bundeskartellamt: “Manufacturers may not impose binding obligations on their retailers on what price to ask for a specific product. Only non-binding price recommendations are allowed. A binding agreement on a certain final sales price between a manufacturer and its retailer, however, is a prohibited agreement which restricts competition.”

Prices were agreed mainly for forthcoming promotional measures to be implemented by the retailers. In the run-up to these promotional campaigns sales representatives of Metzeler had repeatedly informed retailers and representatives of purchasing cooperations verbally or in writing that the sales prices set by Metzeler were fixed prices without any scope for discount and that the products concerned were to be sold as “fixed price goods”. Accordingly, advertising was not to contain any price comparisons, discount promises, strike-through prices or similar information in order to maintain a stable sales price.

The growing importance of online sales and the price transparency this offers threatened to destabilize this price-fixing system. As a result an increasing number of large specialist shops and also online retailers complained about rival offers in the internet which did not comply with the fixed sales prices and asked for explanation or corrective action. Subsequently Metzeler managed to induce the deviating retailers to “properly” advertise sales prices in future.

The Bundeskartellamt’s investigations found no indications of anti-competitive horizontal agreements between the mattress manufacturers.

The proceeding was initiated in response to complaints from within the market. As a result, in August 2011 the Bundeskartellamt had conducted a dawn raid at various companies within the sector. On 21 August 2014 it also fined Recticel Schlafkomfort GmbH, Bochum, for imposing resale price maintenance on its retailers (see Bundeskartellamt press release of 22.08.2014). Proceedings against two other manufacturers are still ongoing.
In setting the fine the Bundeskartellamt took account of the fact that Metzeler Schaum GmbH had cooperated with the authority and a settlement could be reached.

The order imposing the fine is not yet final. The decision can be appealed to the Düsseldorf Higher Regional Court.