The Bundeskartellamt has concluded its proceedings concerning clauses restricting competition in ASICS Germany's distribution system. The authority accuses ASICS of unlawfully restricting in particular small and medium-sized authorised dealers in online sales.
Andreas Mundt, President of the Bundeskartellamt:
"In the dynamically developing internet trade, we have to be careful to do justice to the interests of manufacturers and at the same time keep markets and opportunities open for the benefit of dealers and consumers. If manufacturers prohibit their authorised dealers from using price comparison engines and sales portals or if the use of the respective trademarks for their own search engine advertising is excluded, the consumer can de facto no longer find the smaller dealers on the internet. Many manufacturers of sports shoes - including ASICS in the meantime - have established their own online shops. They cooperate with large marketplaces like Amazon. If, at the same time, these manufacturers enforce far-reaching internet restrictions on their predominantly small retailers, online business will ultimately be concentrated on the manufacturers themselves and a few large retailers or market-leading marketplaces."
ASICS, the market leader in Germany for running shoes, selects its authorised dealers according to strict quality criteria within the framework of a so-called "selective distribution". According to German and European competition law, manufacturers of branded products enjoy extensive leeway to ensure a quality standard in the distribution of their products and to impose corresponding requirements on their authorised dealers. However, such measures must not lead to a situation where small and medium-sized dealers in particular are restricted in their ability to sell products via the internet. There is a danger that consumers will be deprived of the advantages of the coexistence of stationary sales and internet sales by excessive sales restrictions. Selective distribution must not be used to eliminate the breadth of supply on the internet and the price-reducing tendencies associated with it.
In the past, ASICS prohibited its dealers from, among other things, using price comparison engines for their online presence and from using ASICS trademarks on third party websites to direct customers to their own online shop. In the Bundeskartellamt's view, this ban primarily served to control price competition both in online sales and in stationary sales. The investigations showed that small and medium-sized retailers in particular were unable to compensate for the associated loss of reach.
The Bundeskartellamt also criticised the fact that in the past traders had been banned across the board from using online marketplaces such as eBay or Amazon. This no longer had to be decided in view of the other internet restrictions found to be in violation of cartel law.
The decision is intended to initiate a discussion process on the antitrust assessment of marketplace bans and other internet distribution restrictions - also at the European level. The competition authorities receive numerous complaints from retailers about the internet distribution conditions of brand manufacturers. The e-commerce sector enquiry currently being conducted by the European Commission will also possibly lead to further findings. In addition, further regulatory or judicial decisions are to be expected.
ASICS Germany has since amended the sales clauses objected to. The company can appeal against the declaratory decision to the Düsseldorf Higher Regional Court.
Source: Bundeskartellamt press release of 27.08.2015
Goldberg Attorneys at Law 2015
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
