Publication of guidance note on the prohibition of vertical price fixing in the food retail sector - public consultation

Today the Bundeskartellamt published a draft guidance note on vertical price fixing in the brick-and-mortar food retail sector. Interested parties are invited to submit comments on the note as part of a public consultation.

Andreas Mundt, President of Bundeskartellamt: "In recent years we have conducted a significant number of proceedings in which we intensely examined the business relations between retailers and manufacturers in the food sector. We have only recently concluded a major proceeding on vertical price fixing in which we imposed fines on a total of 27 companies. There are, however, areas where violations are not as clear-cut and where market participants are unsure about the legality of certain market practices and require clarification. Our publication aims to provide small and medium-sized companies, in particular, with guidance to enable them to walk the thin line between necessary communication processes on the one hand and illegal behaviour on the other."

In a major proceeding which was concluded in 2016, the Bundeskartellamt imposed fines totalling EUR 260.5 million on 27 undertakings (retailers and manufacturers) for having engaged in price fixing activities (see press release of 15 December 2016).

It is the aim of the guidance note to explain to undertakings in the sector, also with the help of practical examples, the background, purpose and scope of the prohibition of vertical price fixing in the brick-and-mortar food retail sector. The information is intended for small and medium-sized undertakings, in particular, which do not have easy access to antitrust advice.

Vertical price fixing is prohibited both under German and European law and con only be exempted from the prohibition of anti-competitive agreements in exceptional cases. The European Commission has published guidelines on vertical restraints which contain statements on the interpretation of the prohibition of vertical price fixing under European law. The Bundeskartellamt's guidance note complements the Commission's guidelines by adding specific advice with regard to practices used in the brick-and-mortar food retail sector.

Interested parties are invited to submit a comment on the draft note by 10 March 2017 to the following email address: Konsultation-Preisbindung-LEH@bundeskartellamt.bund.de.

The draft "Guidance note on the prohibition of vertical price fixing in the brick-and-mortar food retail sector" is available in German and English on the website of the Bundeskartellamt.