-
德国
Ban of Price Comparison Tools: anti-competitive and void?
1 8 月 2017
- 反垄断
- 分销协议
- 电子商务
Manufacturers of brand-name products typically aim to ensure the same level of quality of distribution throughout all distribution channels, offline and online. To achieve this aim, they provide criteria how to resell their products. With the increase of internet sales, the use of such criteria has been increasing as well.
A total ban of online sales to end consumers within the EU is, however, hardly valid because online sales are considered as passive sales (cf. Guidelines on Vertical Restraints 2010, para. 52). Restrictions below a total ban are, however, commonplace (for examples, see the post “eCommerce: restrictions on distributors in Germany”). Yet, it is still not clear how far such restrictions are permissible.
For example, the luxury perfume manufacturer Coty’s German subsidiary Coty Germany GmbH has set up a selective distribution network and its distributors may sell via the Internet, under the following conditions. They shall
- use their internet store as “electronic store window” of their brick and mortar store(s), thereby maintaining the products’ character as luxury goods, and
- abstain insofar from engaging third parties as such cooperation is externally visible.
The court of first instance decided that tsuch ban of sales via third party platforms was an unlawful restriction of competition under art. 101 Treaty on the Functioning of the European Union (“TFEU”), namely a hardcore restriction under article 4 lit. c Regulation (EU) No. 330/2010 (Vertical Block Exemptions Regulation or “VBER”). The court of second instance, however, does obviously not see the answer that clear. Instead, the court requested the Court of Justice of the European Union (CJEU) to give a preliminary ruling on how European antitrust rules have to be interpreted, namely article 101 TFEU and article 4 lit. b and c VBER (decision of 19.04.2016, ref. no. 11 U 96/14 [Kart]) – see the previous post “eCommerce: restrictions on distributors in Germany”.
On 30 March 2017, the hearing took place before the CJEU:
- Coty defended its platform ban, arguing it aimed at protecting the luxury image of brands such as Marc Jacobs, Calvin Klein or Chloe.
- France – seat of several luxury brands such as Louis Vuitton, Chanel and Christian Dior –supported Coty.
- The distributor instead argued that established platforms such as Amazon and eBay already sold various brand-name products, e.g. of L’Oréal. Accordingly, there was no reason for Coty to ban the resale via these marketplaces. Germany also supported this view by emphasizing the importance of online platforms for small and medium-sized enterprises (where, however, the share of distributors using online marketplaces is 62% much higher than in all other Member States, see the Staff Working Document, „Final report on the E-commerce Sector Inquiry“, para. 452).
- Luxembourg – the seat of Amazon – considers a general platform ban to be disproportionate and therefore as anti-competitive (cf. Reuters’ article here).
Interest in the outcome of the Coty case is widespread, as the active participation of the various EU Member States illustrates (in addition to the abovementioned countries, also Italy, Sweden, the Netherlands and Austria). Simply put, the question is whether owners of luxury brands may generally or at least partially ban the resale via internet on third-party platforms.
Indications on how the court may decide have just appeared on 26 July 2017, with the Advocate General giving his opinion. The Advocate General proposes that the CJEU answers the questions referred to the court as follows:
“(1) Selective distribution systems relating to the distribution of luxury and prestige products and mainly intended to preserve the ‘luxury image’ of those products are an aspect of competition which is compatible with Article 101(1) TFEU provided that resellers are chosen on the basis of objective criteria of a qualitative nature which are determined uniformly for all and applied in a non-discriminatory manner for all potential resellers, that the nature of the product in question, including the prestige image, requires selective distribution in order to preserve the quality of the product and to ensure that it is correctly used, and that the criteria established do not go beyond what is necessary.
(2) In order to determine whether a contractual clause incorporating a prohibition on authorised distributors of a distribution network making use in a discernible manner of third-party platforms for online sales is compatible with Article 101(1) TFEU, it is for the referring court to examine whether that contractual clause is dependent on the nature of the product, whether it is determined in a uniform fashion and applied without distinction and whether it goes beyond what is necessary.
(3 The prohibition imposed on the members of a selective distribution system who operate as retailers on the market from making use in a discernible manner of third undertakings for internet sales does not constitute a restriction of the retailer’s customers within the meaning of Article 4(b) of Commission Regulation (EU) No 330/2010 of 20 April 2010 on the application of Article 101(3) on the Treaty of the Functioning of the European Union to categories of vertical agreements and concerted practices.
(4) The prohibition imposed on the members of a selective distribution system, who operate as retailers on the market, from making use in a discernible manner of third undertakings for internet sales does not constitute a restriction of passive sales to end users within the meaning of Article 4(c) of Regulation No 330/2010.”
The Advocate General’s complete opinion can be found at CJEU’s website here.
The updated overview of the procedure can be found at CJEU’s website here.
Practical Conclusions
- The Coty case is extremely relevant to distribution in Europe because more than 70% of the world’s luxury items are sold here, many of them online now.
- The general ban to use price comparison tools shall be anti-competitive – according to the Bundeskartellamt, as confirmed by the Higher Regional Court of Düsseldorf on 5 April 2017. The last word is, however, still far from being said – see the post “Asics’ Distribution of Sporting Goods: Ban of Price Comparison Tools anti-competitive & void?!?”. Besides, also the Coty case’s outcome may influence how to see such bans.
- The Coty case is setting the course for future Internet sales. Depending on the decision of the CJEU, manufacturers of luxury or brand-name products can continue to ban the use of marketplaces like Amazon or eBay for the distribution of their products – or not any more or only under certain conditions. If the court follows the Advocate General’s conclusions, such platform bans appear possible, provided that the platform ban depends “on the nature of the product, whether it is determined in a uniform fashion and applied without distinction and whether it goes beyond what is necessary” (see above).
- For further trends in distribution online, see the EU Commission’s Final report on the E-commerce Sector Inquiry and details in the Staff Working Document, „Final report on the E-commerce Sector Inquiry“.
- For details on distribution networks and antitrust, please see my article „Plattformverbote im Selektivvertrieb – der EuGH-Vorlagebeschluss des OLG Frankfurt vom 19.4.2016“, in: Zeitschrift für Vertriebsrecht 2016, p. 278–283.
Manufacturers of brand-name products typically aim to ensure the same level of quality of distribution throughout all distribution channels. To achieve this aim, they provide criteria how to resell their products. With the increase of internet sales, the use of such criteria has been increasing as well.
Best example: Asics. Until 2010, the German subsidiary Asics Deutschland GmbH supplied its distributors in Germany without applying special criteria. In 2011, Asics launched a selective distribution system called “Distribution System 1.0“. It provided, inter alia, for a general ban on distributors to use price comparison tools in online sales:
“In addition, the authorized B … distributor is not supposed to … support the functionality of price-comparison tools by providing application-specific interfaces (” API”) for these price comparison tools.” (translated]
The German Federal Antitrust Authority (“Bundeskartellamt”) has determined by decision of 26 August 2015 that the ban of price-comparison tools against distributors based in Germany was void because it infringed Article 101 (1) TFEU, sec. 1 Act on Restraints of Competition (see the 196-page decision here). Reason given was that such ban would primarily aim at controlling and limiting price competition at the expense of consumers. Asics, instead, filed a complaint before the Higher Regional Court of Düsseldorf to annul the Bundeskartellamt’s decision. Asics argued that this ban was a proportionate quality standard within its “Distribution System 1.0“, aiming at a uniform product presentation.
Now the Higher Regional Court of Düsseldorf on 5 April 2017 confirmed the Bundeskartellamt’s decision that within selective distribution systems the general ban to use price comparison tools was anti-competitive and therefore void (ref. no. VI-Kart 13/15 (V); see also the Bundeskartellamt’s press release in English):
- In particular, the ban of price comparison tools was not exempt from Art. 101 (1) TFEU by way of teleological interpretation (“Tatbestandsreduktion”). According to the court, it was not necessary in order to protect the quality and the product image of the Asics brand (same argumentation as the Higher Regional Court of Frankfurt in its judgment of 22.12.2015, ref. no. 11 U 84/14 regarding Deuter’s functional back-up bags; the Federal Supreme Court will, however, still decide on this, ref. no. KZR 3/16). The court declared that the ban was intended to restrict the buyers, arguing that distributors would be restricted in entering into a price competition with others. The presentation of products in price comparison tools would not damage the quality or brand of Asics products. It would neither give a “flea market impression“, ostensibly also not from the simultaneous presentation of used products. Also, the ban of price comparison tools would not solve the problem of “free-riding“. In any event, the general ban of price comparison tools was not necessary and therefore unlawful.
- The ban would also not be exempt under the Vertical Block Exemption Regulation. Instead, the court argued, the ban would limit passive sales (over the internet) to end customers, contrary to Art. 4 (c) Vertical Block Exemption Regulation (referring to the CJEU decision in the case of Pierre Fabre, 13 October 2011, ref. no. C-439/09). The “equivalence principle” (i.e. restrictions for offline as well as online sales should not be identical, but functionally equivalent) would not apply as there were no comparable functions to price comparison tools in the stationary trade.
- Finally, the ban would also not benefit from the individual exemption under art. 101 (3) TFEU (“efficiency defence”).
Conclusions:
- According to the Higher Regional Court of Düsseldorf, manufacturers might not generally prohibit their distributors from using price comparison tools. At the same time, the court also refused to grant leave to appeal against its decision – which, however, can be challenged separately by way of an appeal (sec. 74, 75 Act on Restraints of Competition).The future development of criteria limiting distributors in reselling online remains open, especially as (i) the Coty case is pending at the CJEU (see below) and (ii) the EU Commission in its sector enquiry into e-commerce currently appears to favour manufacturers of brand-name products (see below).
- The court has explicitly left open – arguing that they were not relevant for its decision – whether
- the ban of search engines is anti-competitive (para. 44 et seq. of the decision);
- the general ban of third-party platforms is anti-competitive (para. 7) – although Asics’ “Distribution System 1.0” also banned third-party platforms such as Amazon or eBay.
- Whether and how manufacturers of luxury or brand-name products can continue to ban their distributing via Amazon, eBay and other marketplaces in general in the future will likely be decided by the CJEU in the coming months – in the case of Coty (see our post “eCommerce: restrictions on distributors in Germany”) where a hearing has been just recently been held end of March 2017.
- Without prejudice to the Coty case, the EU Commission has however, in its sector enquiry into e-commerce of May 2017, declared that
- “marketplace bans do not generally amount to a de facto prohibition on selling online or restrict the effective use of the internet as a sales channel irrespective of the markets concerned …,
- the potential justification and efficiencies reported by manufacturers differ from one product to another …”,
- (absolute) marketplace bans should not be considered as hardcore restrictions within the meaning of Article 4(b) and Article 4(c) of the VBER…,
- the Commission or a national competition authority may decide to withdraw the protection of the VBER in particular cases when justified by the market situation”
(41–43 Final Report on the e-commerce sector inquiry).
Hence, on the basis of the EU Commission’s most recent position, there is room for arguments and creative contract drafting since even general marketplace bans can be compatible with the EU competition rules. However, the courts may see this differently in the single case. Therefore, especially the CJEU with its Coty case (see above) will likely bring more clarity for future online distribution.
在分销合同中，制造商和供应商倾向于限制分销商在线销售商品(I.)。尽管这种做法相当普遍，但反垄断法对于是否有和有哪些限制得到允许并没有建立明确的规定(II.)，特别是有关于在选择性分销网络上销售奢侈品的情况(III.).。
如今，上述问题将决定于欧盟司法法院（CJEU）对互联网上的销售限制的所做出的初步裁决（IV）。以此同时，出现一个问题：如何处理转售限制？(V.)。
电子贸易销售限制
电子贸易不断发展–在全球并且也在德国，它约占总零售额的10%（据“Handelsverband Deutschland” [德国贸易协会]2016年的数据）。同样，知名品牌制造商也试图利用电子商务的市场机遇，同时努力维护自己品牌的形象。因此，制造商对分销商进行了若干限制，特别是：
- 全面禁止互联网销售，
- 禁止通过第三方线上平台销售（特别是“市场”），
- 经营一个实体店作为因特网销售的先决条件，
- 双重定价，或
- 互联网销售的质量标准。
对网上转售限制的反垄断限制
然而，反垄断当局最近对这些限制进行了审查，并在电子商务中实施反垄断规则。因此，有相当多的法院判决和反垄断当局的决定，赞成和反对这种限制的都有，例如：
- 包（“Scout”第三方平台），
- 运动（“ASIC”价格比较，标志条款，“阿迪达斯”第三方平台），
- 电子（“森海塞尔”和“卡西欧”均为第三方平台），
- 奢侈化妆品/香水（“科蒂”价格比较，第三平台），或
- 软件（“谷歌”要求制造商预装应用程序，参见欧洲联盟委员会2016年4月20日的新闻稿）。
现在，Coty德国奢侈化妆品案已达到欧洲水平。
如今的科蒂案
本案的事实如下:供应商（Coty Germany GmbH）成立了一个选择性分销网络。分销商可在以下限制下通过互联网销售。它们应:
- 利用它们的网络商店作为其实体店的“电子商店窗口”，从而维持产品的奢侈品性质，以及
- 禁止与第三方合作，因为这种合作是对外可见的。
当事人的意图：供应商要特别实施最后的限制，阻止一个通过亚马逊的市场来销售供应商商品的分销商(Parfümerie Akzente GmbH)。很明显，分销商打算摆脱这种限制。
一审法院，法兰克福区法院，根据《欧洲联盟运作条约》（“TFEU”）第101条，裁决认为通过第三方平台的销售禁令，即Regulation（EU）第330/2010（坚决豁免规定或“VBER”）第四条（C）款。然而，二审法院，法兰克福高级地方法院，显然没有给出明确的答案。因此，法院已要求欧盟法院（CJEU）对欧盟反垄断规则即《欧洲联盟运作条约》第101条和第4条（b）款和（c）款（ 19.04.2016, ref. no. 11 U 96/14 [Kart]的决定)如何解释作出初步裁决，
提交给欧盟法院的问题
欧盟司法法院已经为“科蒂德国”立案（reference no. C-230/16）。以下是欧盟司法法院需要回答的四个问题：
- 选择性的分销网络的目标在于销售奢侈品以及确保商品有“奢侈的形象”以保 持竞争，这与《欧洲联盟运作条约》第101条第一款可以共存吗？
如果第一个问题得到肯定的回答：
- 在具体案例中，如果一个在零售业经商的选择性分销网络的成员被广泛禁止在公开的第三方线上平台进行网络销售，无论生产商的质量是否合法，其竞争性是否与《欧洲联盟运作条约》第101条第一款共存？
是否欧盟法第330 / 2010第四条（b）款可被解释为，强制禁止在零售业经商的选择性分销网络的成员在公开的第三方线上平台进行网络销售，限制了零售商的消费群体有关于物品的选择？
是否欧盟法第330 / 2010第四条（c）款可被解释为，强制禁止在零售业经商的选择性分销网络的成员在公开的第三方线上平台进行网络销售，限制了向终端用户通过物品的消极销售？
如今如何对待限制
在德国，关于网上销售的禁令有一些判例法，有些判决是赞成的，有些判决是反对的。网络销售的限制最近也被德国联邦卡特尔局所审查（联邦反垄断局），这种审查对反对这种限制有很关键的作用，包括对在第三方平台销售的限制。
然而德国最高法院的判决仍旧下落不明。关于供应商和分销商是否可以有效地达成一致特别是对于奢侈品方面的问题也至今没有一个清楚的答案。欧盟司法法院的初步判决应该给予这些问题清晰的回复。
直到欧盟司法法院初步判决下来，目前的法律现状应该特别建立在纵向限制标准2010（其不具备法律质量并且也不约束法庭，而是规定了指导欧洲委员会对纵向协议进行评估的原则，从而通过原则约束欧洲委员会本身）上：
- 全面禁止网络销售很难成立因为网络销售被认为是被动销售（参见纵向限制标准2010，第52段）。几乎没有一个批准是限制网络商店语言的因为这并不能改变这种销售的被动性质（参见纵向限制标准2010，第52段）。对互联网销售的营业额的限制也是如此。
- 然而，允许必须是，特别是
- 对电子商务平台设计的定性要求（不造成全面禁止和不限制语言的使用）
- 对在独占区域，或对供应商的独家客户群，或由供应商分配的另一个买家积极销售的限制（VBER第四条b款（i）项），比如在第三方网站上的区域性横幅（参见纵向限制标准2010，第53段）。
- 成为供应商选择性分销网络成员的一般定性限制，例如要求分销商有一个或者多个实体店或陈列室（纵向限制标准2010，第54段，176）
欧盟法院的判决将更加清晰——Legalmodo会持续更新科蒂德国案和其他对于网络分销有可能的影响。
阿根廷 
巴西 
意大利 
乌拉圭 
西班牙 
法国 
欧洲 
写信给 Benedikt
电子商务：对德国经销商的限制
15 7 月 2017
-
德国
- 分销协议
- 电子商务
Manufacturers of brand-name products typically aim to ensure the same level of quality of distribution throughout all distribution channels, offline and online. To achieve this aim, they provide criteria how to resell their products. With the increase of internet sales, the use of such criteria has been increasing as well.
A total ban of online sales to end consumers within the EU is, however, hardly valid because online sales are considered as passive sales (cf. Guidelines on Vertical Restraints 2010, para. 52). Restrictions below a total ban are, however, commonplace (for examples, see the post “eCommerce: restrictions on distributors in Germany”). Yet, it is still not clear how far such restrictions are permissible.
For example, the luxury perfume manufacturer Coty’s German subsidiary Coty Germany GmbH has set up a selective distribution network and its distributors may sell via the Internet, under the following conditions. They shall
- use their internet store as “electronic store window” of their brick and mortar store(s), thereby maintaining the products’ character as luxury goods, and
- abstain insofar from engaging third parties as such cooperation is externally visible.
The court of first instance decided that tsuch ban of sales via third party platforms was an unlawful restriction of competition under art. 101 Treaty on the Functioning of the European Union (“TFEU”), namely a hardcore restriction under article 4 lit. c Regulation (EU) No. 330/2010 (Vertical Block Exemptions Regulation or “VBER”). The court of second instance, however, does obviously not see the answer that clear. Instead, the court requested the Court of Justice of the European Union (CJEU) to give a preliminary ruling on how European antitrust rules have to be interpreted, namely article 101 TFEU and article 4 lit. b and c VBER (decision of 19.04.2016, ref. no. 11 U 96/14 [Kart]) – see the previous post “eCommerce: restrictions on distributors in Germany”.
On 30 March 2017, the hearing took place before the CJEU:
- Coty defended its platform ban, arguing it aimed at protecting the luxury image of brands such as Marc Jacobs, Calvin Klein or Chloe.
- France – seat of several luxury brands such as Louis Vuitton, Chanel and Christian Dior –supported Coty.
- The distributor instead argued that established platforms such as Amazon and eBay already sold various brand-name products, e.g. of L’Oréal. Accordingly, there was no reason for Coty to ban the resale via these marketplaces. Germany also supported this view by emphasizing the importance of online platforms for small and medium-sized enterprises (where, however, the share of distributors using online marketplaces is 62% much higher than in all other Member States, see the Staff Working Document, „Final report on the E-commerce Sector Inquiry“, para. 452).
- Luxembourg – the seat of Amazon – considers a general platform ban to be disproportionate and therefore as anti-competitive (cf. Reuters’ article here).
Interest in the outcome of the Coty case is widespread, as the active participation of the various EU Member States illustrates (in addition to the abovementioned countries, also Italy, Sweden, the Netherlands and Austria). Simply put, the question is whether owners of luxury brands may generally or at least partially ban the resale via internet on third-party platforms.
Indications on how the court may decide have just appeared on 26 July 2017, with the Advocate General giving his opinion. The Advocate General proposes that the CJEU answers the questions referred to the court as follows:
“(1) Selective distribution systems relating to the distribution of luxury and prestige products and mainly intended to preserve the ‘luxury image’ of those products are an aspect of competition which is compatible with Article 101(1) TFEU provided that resellers are chosen on the basis of objective criteria of a qualitative nature which are determined uniformly for all and applied in a non-discriminatory manner for all potential resellers, that the nature of the product in question, including the prestige image, requires selective distribution in order to preserve the quality of the product and to ensure that it is correctly used, and that the criteria established do not go beyond what is necessary.
(2) In order to determine whether a contractual clause incorporating a prohibition on authorised distributors of a distribution network making use in a discernible manner of third-party platforms for online sales is compatible with Article 101(1) TFEU, it is for the referring court to examine whether that contractual clause is dependent on the nature of the product, whether it is determined in a uniform fashion and applied without distinction and whether it goes beyond what is necessary.
(3 The prohibition imposed on the members of a selective distribution system who operate as retailers on the market from making use in a discernible manner of third undertakings for internet sales does not constitute a restriction of the retailer’s customers within the meaning of Article 4(b) of Commission Regulation (EU) No 330/2010 of 20 April 2010 on the application of Article 101(3) on the Treaty of the Functioning of the European Union to categories of vertical agreements and concerted practices.
(4) The prohibition imposed on the members of a selective distribution system, who operate as retailers on the market, from making use in a discernible manner of third undertakings for internet sales does not constitute a restriction of passive sales to end users within the meaning of Article 4(c) of Regulation No 330/2010.”
The Advocate General’s complete opinion can be found at CJEU’s website here.
The updated overview of the procedure can be found at CJEU’s website here.
Practical Conclusions
- The Coty case is extremely relevant to distribution in Europe because more than 70% of the world’s luxury items are sold here, many of them online now.
- The general ban to use price comparison tools shall be anti-competitive – according to the Bundeskartellamt, as confirmed by the Higher Regional Court of Düsseldorf on 5 April 2017. The last word is, however, still far from being said – see the post “Asics’ Distribution of Sporting Goods: Ban of Price Comparison Tools anti-competitive & void?!?”. Besides, also the Coty case’s outcome may influence how to see such bans.
- The Coty case is setting the course for future Internet sales. Depending on the decision of the CJEU, manufacturers of luxury or brand-name products can continue to ban the use of marketplaces like Amazon or eBay for the distribution of their products – or not any more or only under certain conditions. If the court follows the Advocate General’s conclusions, such platform bans appear possible, provided that the platform ban depends “on the nature of the product, whether it is determined in a uniform fashion and applied without distinction and whether it goes beyond what is necessary” (see above).
- For further trends in distribution online, see the EU Commission’s Final report on the E-commerce Sector Inquiry and details in the Staff Working Document, „Final report on the E-commerce Sector Inquiry“.
- For details on distribution networks and antitrust, please see my article „Plattformverbote im Selektivvertrieb – der EuGH-Vorlagebeschluss des OLG Frankfurt vom 19.4.2016“, in: Zeitschrift für Vertriebsrecht 2016, p. 278–283.
Manufacturers of brand-name products typically aim to ensure the same level of quality of distribution throughout all distribution channels. To achieve this aim, they provide criteria how to resell their products. With the increase of internet sales, the use of such criteria has been increasing as well.
Best example: Asics. Until 2010, the German subsidiary Asics Deutschland GmbH supplied its distributors in Germany without applying special criteria. In 2011, Asics launched a selective distribution system called “Distribution System 1.0“. It provided, inter alia, for a general ban on distributors to use price comparison tools in online sales:
“In addition, the authorized B … distributor is not supposed to … support the functionality of price-comparison tools by providing application-specific interfaces (” API”) for these price comparison tools.” (translated]
The German Federal Antitrust Authority (“Bundeskartellamt”) has determined by decision of 26 August 2015 that the ban of price-comparison tools against distributors based in Germany was void because it infringed Article 101 (1) TFEU, sec. 1 Act on Restraints of Competition (see the 196-page decision here). Reason given was that such ban would primarily aim at controlling and limiting price competition at the expense of consumers. Asics, instead, filed a complaint before the Higher Regional Court of Düsseldorf to annul the Bundeskartellamt’s decision. Asics argued that this ban was a proportionate quality standard within its “Distribution System 1.0“, aiming at a uniform product presentation.
Now the Higher Regional Court of Düsseldorf on 5 April 2017 confirmed the Bundeskartellamt’s decision that within selective distribution systems the general ban to use price comparison tools was anti-competitive and therefore void (ref. no. VI-Kart 13/15 (V); see also the Bundeskartellamt’s press release in English):
- In particular, the ban of price comparison tools was not exempt from Art. 101 (1) TFEU by way of teleological interpretation (“Tatbestandsreduktion”). According to the court, it was not necessary in order to protect the quality and the product image of the Asics brand (same argumentation as the Higher Regional Court of Frankfurt in its judgment of 22.12.2015, ref. no. 11 U 84/14 regarding Deuter’s functional back-up bags; the Federal Supreme Court will, however, still decide on this, ref. no. KZR 3/16). The court declared that the ban was intended to restrict the buyers, arguing that distributors would be restricted in entering into a price competition with others. The presentation of products in price comparison tools would not damage the quality or brand of Asics products. It would neither give a “flea market impression“, ostensibly also not from the simultaneous presentation of used products. Also, the ban of price comparison tools would not solve the problem of “free-riding“. In any event, the general ban of price comparison tools was not necessary and therefore unlawful.
- The ban would also not be exempt under the Vertical Block Exemption Regulation. Instead, the court argued, the ban would limit passive sales (over the internet) to end customers, contrary to Art. 4 (c) Vertical Block Exemption Regulation (referring to the CJEU decision in the case of Pierre Fabre, 13 October 2011, ref. no. C-439/09). The “equivalence principle” (i.e. restrictions for offline as well as online sales should not be identical, but functionally equivalent) would not apply as there were no comparable functions to price comparison tools in the stationary trade.
- Finally, the ban would also not benefit from the individual exemption under art. 101 (3) TFEU (“efficiency defence”).
Conclusions:
- According to the Higher Regional Court of Düsseldorf, manufacturers might not generally prohibit their distributors from using price comparison tools. At the same time, the court also refused to grant leave to appeal against its decision – which, however, can be challenged separately by way of an appeal (sec. 74, 75 Act on Restraints of Competition).The future development of criteria limiting distributors in reselling online remains open, especially as (i) the Coty case is pending at the CJEU (see below) and (ii) the EU Commission in its sector enquiry into e-commerce currently appears to favour manufacturers of brand-name products (see below).
- The court has explicitly left open – arguing that they were not relevant for its decision – whether
- the ban of search engines is anti-competitive (para. 44 et seq. of the decision);
- the general ban of third-party platforms is anti-competitive (para. 7) – although Asics’ “Distribution System 1.0” also banned third-party platforms such as Amazon or eBay.
- Whether and how manufacturers of luxury or brand-name products can continue to ban their distributing via Amazon, eBay and other marketplaces in general in the future will likely be decided by the CJEU in the coming months – in the case of Coty (see our post “eCommerce: restrictions on distributors in Germany”) where a hearing has been just recently been held end of March 2017.
- Without prejudice to the Coty case, the EU Commission has however, in its sector enquiry into e-commerce of May 2017, declared that
- “marketplace bans do not generally amount to a de facto prohibition on selling online or restrict the effective use of the internet as a sales channel irrespective of the markets concerned …,
- the potential justification and efficiencies reported by manufacturers differ from one product to another …”,
- (absolute) marketplace bans should not be considered as hardcore restrictions within the meaning of Article 4(b) and Article 4(c) of the VBER…,
- the Commission or a national competition authority may decide to withdraw the protection of the VBER in particular cases when justified by the market situation”
(41–43 Final Report on the e-commerce sector inquiry).
Hence, on the basis of the EU Commission’s most recent position, there is room for arguments and creative contract drafting since even general marketplace bans can be compatible with the EU competition rules. However, the courts may see this differently in the single case. Therefore, especially the CJEU with its Coty case (see above) will likely bring more clarity for future online distribution.
在分销合同中，制造商和供应商倾向于限制分销商在线销售商品(I.)。尽管这种做法相当普遍，但反垄断法对于是否有和有哪些限制得到允许并没有建立明确的规定(II.)，特别是有关于在选择性分销网络上销售奢侈品的情况(III.).。
如今，上述问题将决定于欧盟司法法院（CJEU）对互联网上的销售限制的所做出的初步裁决（IV）。以此同时，出现一个问题：如何处理转售限制？(V.)。
电子贸易销售限制
电子贸易不断发展–在全球并且也在德国，它约占总零售额的10%（据“Handelsverband Deutschland” [德国贸易协会]2016年的数据）。同样，知名品牌制造商也试图利用电子商务的市场机遇，同时努力维护自己品牌的形象。因此，制造商对分销商进行了若干限制，特别是：
- 全面禁止互联网销售，
- 禁止通过第三方线上平台销售（特别是“市场”），
- 经营一个实体店作为因特网销售的先决条件，
- 双重定价，或
- 互联网销售的质量标准。
对网上转售限制的反垄断限制
然而，反垄断当局最近对这些限制进行了审查，并在电子商务中实施反垄断规则。因此，有相当多的法院判决和反垄断当局的决定，赞成和反对这种限制的都有，例如：
- 包（“Scout”第三方平台），
- 运动（“ASIC”价格比较，标志条款，“阿迪达斯”第三方平台），
- 电子（“森海塞尔”和“卡西欧”均为第三方平台），
- 奢侈化妆品/香水（“科蒂”价格比较，第三平台），或
- 软件（“谷歌”要求制造商预装应用程序，参见欧洲联盟委员会2016年4月20日的新闻稿）。
现在，Coty德国奢侈化妆品案已达到欧洲水平。
如今的科蒂案
本案的事实如下:供应商（Coty Germany GmbH）成立了一个选择性分销网络。分销商可在以下限制下通过互联网销售。它们应:
- 利用它们的网络商店作为其实体店的“电子商店窗口”，从而维持产品的奢侈品性质，以及
- 禁止与第三方合作，因为这种合作是对外可见的。
当事人的意图：供应商要特别实施最后的限制，阻止一个通过亚马逊的市场来销售供应商商品的分销商(Parfümerie Akzente GmbH)。很明显，分销商打算摆脱这种限制。
一审法院，法兰克福区法院，根据《欧洲联盟运作条约》（“TFEU”）第101条，裁决认为通过第三方平台的销售禁令，即Regulation（EU）第330/2010（坚决豁免规定或“VBER”）第四条（C）款。然而，二审法院，法兰克福高级地方法院，显然没有给出明确的答案。因此，法院已要求欧盟法院（CJEU）对欧盟反垄断规则即《欧洲联盟运作条约》第101条和第4条（b）款和（c）款（ 19.04.2016, ref. no. 11 U 96/14 [Kart]的决定)如何解释作出初步裁决，
提交给欧盟法院的问题
欧盟司法法院已经为“科蒂德国”立案（reference no. C-230/16）。以下是欧盟司法法院需要回答的四个问题：
- 选择性的分销网络的目标在于销售奢侈品以及确保商品有“奢侈的形象”以保 持竞争，这与《欧洲联盟运作条约》第101条第一款可以共存吗？
如果第一个问题得到肯定的回答：
- 在具体案例中，如果一个在零售业经商的选择性分销网络的成员被广泛禁止在公开的第三方线上平台进行网络销售，无论生产商的质量是否合法，其竞争性是否与《欧洲联盟运作条约》第101条第一款共存？
是否欧盟法第330 / 2010第四条（b）款可被解释为，强制禁止在零售业经商的选择性分销网络的成员在公开的第三方线上平台进行网络销售，限制了零售商的消费群体有关于物品的选择？
是否欧盟法第330 / 2010第四条（c）款可被解释为，强制禁止在零售业经商的选择性分销网络的成员在公开的第三方线上平台进行网络销售，限制了向终端用户通过物品的消极销售？
如今如何对待限制
在德国，关于网上销售的禁令有一些判例法，有些判决是赞成的，有些判决是反对的。网络销售的限制最近也被德国联邦卡特尔局所审查（联邦反垄断局），这种审查对反对这种限制有很关键的作用，包括对在第三方平台销售的限制。
然而德国最高法院的判决仍旧下落不明。关于供应商和分销商是否可以有效地达成一致特别是对于奢侈品方面的问题也至今没有一个清楚的答案。欧盟司法法院的初步判决应该给予这些问题清晰的回复。
直到欧盟司法法院初步判决下来，目前的法律现状应该特别建立在纵向限制标准2010（其不具备法律质量并且也不约束法庭，而是规定了指导欧洲委员会对纵向协议进行评估的原则，从而通过原则约束欧洲委员会本身）上：
- 全面禁止网络销售很难成立因为网络销售被认为是被动销售（参见纵向限制标准2010，第52段）。几乎没有一个批准是限制网络商店语言的因为这并不能改变这种销售的被动性质（参见纵向限制标准2010，第52段）。对互联网销售的营业额的限制也是如此。
- 然而，允许必须是，特别是
- 对电子商务平台设计的定性要求（不造成全面禁止和不限制语言的使用）
- 对在独占区域，或对供应商的独家客户群，或由供应商分配的另一个买家积极销售的限制（VBER第四条b款（i）项），比如在第三方网站上的区域性横幅（参见纵向限制标准2010，第53段）。
- 成为供应商选择性分销网络成员的一般定性限制，例如要求分销商有一个或者多个实体店或陈列室（纵向限制标准2010，第54段，176）
欧盟法院的判决将更加清晰——Legalmodo会持续更新科蒂德国案和其他对于网络分销有可能的影响。