First fine imposed for resale price maintenance in mattress case

The Bundeskartellamt has fined Recticel Schlafkomfort GmbH 8.2 million euros on account of imposing resale price maintenance on retailers selling its products. From July 2005 to December 2009 representatives of Recticel agreed with its retailers that they should not offer certain strategic "Schlaraffia" products below the sales prices set by the manufacturer.

Andreas Mundt, President of the Bundeskartellamt: "Retailers are free to set the price they want for a certain product. Manufacturers can issue non-binding price recommendations but they may not oblige their retailers to comply with set resale prices or even pressurize them to achieve a certain price level, for example by threatening to stop supplies. The prohibition of resale price maintenance already came into force in the 70s and yet we are still receiving complaints from various economic sectors."

The resale price maintenance was enforced in talks with independent retailers or purchasing cooperatives of retailers about compliance with the minimum sales prices, or in correspondence with the retailers reminding them of or requesting compliance with the minimum sales prices. There was a general agreement between the manufacturer and retailers to maintain the minimum sales prices set for strategic products. Whenever a retailer failed to observe the price maintenance and other retailers complained about this, renewed discussion was held with the retailer to induce him to raise the price, which in most cases resulted in an agreement on the resale prices. While this situation applied both to over-the-counter and online sales, a special focus lay on online sales because from 2005 "Schlaraffia" products were increasingly sold over the internet.

As a reaction to the increase in online sales, Recticel offered selected online dealers the opportunity to advertise themselves as so-called "authorised Schlaraffia online dealers" using Recticel's logo and data provided they offered prices which were not lower than the set minimum sales prices for the strategic product lines. Infringements of this condition were to be acted upon by e.g. barring the dealer in exceptional cases from Google-Adwords or from Ebay under Ebay's brand protection programme for the unauthorised usage of manufacturers' data. Some retailers were also threatened with delays in supply or legal steps if they did not adjust the price of their offers to the minimum sales prices set by Recticel.

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

The proceedings were initiated in response to complaints within the market. In August 2011 the Bundeskartellamt conducted searches at several companies in the sector. Proceedings against three other manufacturers are still ongoing.
In setting the fine the Bundeskartellamt took account of the fact that Reticel Schlafkomfort 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.