ASICS dealers allowed to use price comparison engines - Federal Court of Justice confirms Bundeskartellamt's decision

In its decision of 12 December, 2017, published on 19 January, 2018, the Federal Court of Justice decided that ASICS may not forbid its dealers from using price comparison engines (Link to the decision, in German). According to the decision, per se prohibitions which are not tied to quality requirements are illegal. The Court found that the infringement of competition law was so obvious that no hearing was required for further clarification and that the case need not be submitted to the European Court of Justice.

Andreas Mundt, President of the Bundeskartellamt: "In the Internet, dealers do most of their turnover via search engines and on internet market places. Consumers cannot find these dealers if manufacturers forbid retailers from using price comparison engines or the manufacturers' brand names for search engine advertising. In addition, many manufacturers of brand products have set up their own online shops and cooperate with large marketplaces like Amazon. If these manufacturers simultaneously impose online restrictions on their predominantly small and medium-sized dealers, the online business will ultimately be concentrated in the hands of the manufacturers themselves, a few large retailers and even fewer leading marketplaces. So we have to keep the markets open for small retailers for the benefit of consumers and small dealers."

In the statement of reasons for its judgment the Federal Court of Justice emphasizes that in view of the large range of products available on the Internet and the large number of suppliers, price comparison engines are of key importance for consumers. In the court's view they enable those consumers who have already decided on a specific product to search selectively for retailers and good conditions. If a brand manufacturer prohibits its dealers from using price comparison engines, this amounts to an inadmissible "hardcore restriction" of online sales under EU competition law. Due to the combination of online restrictions in the case, it was not ensured that consumers had sufficient access to the online offer of the authorised dealers.

With its ruling the Federal Court of Justice, upholding the decision of the Düsseldorf Higher Regional Court, thus confirmed a corresponding decision of the Bundeskartellamt against ASICS from 2015.

The European Court of Justice (ECJ) has also had to deal with restrictions of retailers' online sales by brand manufacturers. In 2011 the Court decided that a per se prohibition of online sales violated competition law. However, in early December 2017 it decided that the luxury goods manufacturer Coty may prohibit its dealers from selling its goods on online marketplaces. The German Federal Court of Justice has now made reference to both these decisions and holds the view that in contrast to high-priced cosmetic goods (in the ECJ Coty case), sports and running shoes (in the ASICS case) are not luxury goods.