Düsseldorf Higher Regional Court confirms Bundeskartellamt's decision on prohibition of use of price comparison engines

Yesterday the Düsseldorf Higher Regional Court confirmed the Bundeskartellamt's decision of principle against the running shoes manufacturer Asics. According to the decision the general prohibition of the use of price comparison engines by retailers implemented through a (selective) distribution system violates competition law and is illegal.

Andreas Mundt, President of Bundeskartellamt: "Price comparison engines in the Internet are an important means for consumers to gain transparent information about prices and to compare them. They are very useful in particular for smaller and medium-sized retailers who are difficult for customers to find. It is therefore important that manufacturers do not forbid their retailers from using price comparison engines. This is what our test case was about".

The Düsseldorf Higher Regional Court has now confirmed that the general prohibition of the use of price comparison engines is a restriction of competition by object. The court stated that the case law of the European Court of Justice (Pierre Fabre) was clear on this matter. The prohibition deprived the retailers of an advertising and sales possibility. The appeal court stated that the prohibition could also not be justified on the grounds of protecting the company's brand image and pre-sale services because consumers of running shoes did not necessarily need or want such services or if so, could inform themselves via the Internet. The prohibition was a hardcore restriction which did not meet the requirements for exemption under European competition law.

The court left open whether Asics's earlier distribution system was also anti-competitive because of its ban on the use of Google AdWords and on sales via online marketplaces.

Background:

Up to 2015 Asics had prohibited its authorised dealers from using price comparison engines for their online sales. The Bundeskartellamt viewed this clause and the prohibition of the use of brand names as inadmissible competition restraints and prohibited them. In the authority's view the bans were primarily aimed at controlling price competition and hindered competition among retailers to the detriment of consumers. The Bundeskartellamt also criticized that in the past the dealers were prohibited without exception from using online marketplaces such as eBay or Amazon. No decision had to be taken on this point in view of the other anti-competitive online restrictions. Asics appealed to the Higher Regional Court to have the decision revoked. In 2011 Asics had a market share of almost 30% on the German running shoes market and together with Nike and Adidas a market share of over 70%.