The A-Soft Case (Online Distribution): An European and German Perspective

Transcription

1 The A-Soft Case (Online Distribution): Colloque internationale : L application du droit de la concurrence dans le secteur numérique Jeudi 17 novembre 2016 Université Paris Ouest Nanterre La Défense Prof. Dr. Florian Bien

2 The Moov Cas (Intermediation Platform) : Overview 1. Selective Distribution 2. Restriction of Online-Distribution 3. Ban of Market Places 4. Comparison Platforms 5. A-Soft s committments n Prof. Dr. Florian Bien, Maître en Droit (Aix-Marseille) 2

3 1. What are the conditions of validity of a selective distribution system? Economic objective of the supplier: Projecting a certain image for its branded goods, inter alia by ensuring that sales are accompanied by the provision of special services. Selection criteria Selection of retailers can be made by certain quality requirements and/or by number. Asoft: both, qualitative (training ) and quantitative (1 retailer per inhabitants) requirements. Prof. Dr. Florian Bien 3

4 Purely qualitative selective distribution systems (not the case here) Leading case: CJEU case 26/76 Metro Großmärkte GmbH v. Comission I [1977]. See also case 75/84 Metro II. (The Metro I-decision was given shortly after US Supreme Court s judgement in Sylvania overruling Schwinn.) According to the Court there is not even a restriction of competition if the selective distribution agreement meets several conditions. Prof. Dr. Florian Bien 4

5 Purely qualitative selective distribution systems (not the case here) cont d Leading case: CJEU case 26/76 Metro Großmärkte GmbH v. Comission I [1977]: SELECTIVE DISTRIBUTION SYSTEMS CONSTITUTE, TOGETHER WITH OTHERS, AN ASPECT OF COMPETITION WHICH ACCORDS WITH ARTICLE 85(1) [now: Article 101(1) TFEU], PROVIDED THAT RESELLERS ARE CHOSEN ON THE BASIS OF OBJECTIVE CRITERIA OF A QUALITATIVE NATURE RELATING TO THE TECHNICAL QUALIFICATIONS OF THE RESELLER AND HIS STAFF AND THE SUITABILITY OF HIS TRADING PREMISES AND THAT SUCH CONDITIONS ARE LAID DOWN UNIFORMLY FOR ALL POTENTIAL RESELLERS AND ARE NOT APPLIED IN A DISCRIMINATORY FASHION. Prof. Dr. Florian Bien 5

6 Purely qualitative selective distribution systems (not the case here) cont d According to Metro I there is no restriction of competition (agreement not falling within Article 101(1) TFEU) if the following conditions are met: 1. The characteristics or nature of the product necessitate its selective distribution Criteria required for the preservation of the product s quality and proper use such as luxury or technically complex products 2. Selection of distributors based on objective qualitative criteria Competence of the distributer/his staff, equipment etc. 3. Equal and non-discriminatory application of the criteria on all possible distributors 4. Criteria do not exceed what is necessary to attain their objective Prof. Dr. Florian Bien 6

7 Selective distribution systems that are not only qualitative but also quantitative (see Asoft-case) The assessment is stricter, a restriction of competition probable. The restriction of intra brand competition (Article 101(1)) has to be justified. It can be exempted via Vertical Block Exemption Art. 101(3) TFEU (efficiency gains etc.) Prof. Dr. Florian Bien 7

8 2. Can ASOFT impose its distributors constraints or obligations only for online distribution (as such hotline 24h/24h, obligation not to offer on the website second hand goods, obligation not to offer on the website food products)? Factual exclusion of online distribution is not necessary to ensure the customer service and the customer protection of mishandling (CJEU case C- 439/09 Pierre Fabre) here not the case as requirements are not impossible to fulfil by retailers. Online distribution can require specific distribution obligations such as the restriction of sales volume, establishment of a customer hotline, provisions for return costs etc. (Commission, Guidelines on Vertical Restraints, 2010/C 130/01, recital 56) Prof. Dr. Florian Bien 8

9 2. Asoft s constraints only for online distribution cont d Qualitative requirements in the Asoft-case: The distributor must make available to its users a hotline functioning 24h/24 Brick-and-mortar stores are open from 8 to 8 only Online purchase is possible 24h/24 The distributor is prohibited from offering second hand goods on its website (whereas it can in its physical store) Brand image might be in danger when the online store looks like a flee market (which might be the case in an real store too). Consumers might fear that the online retailer sends them second hand goods instead of new products. On the website proposing Asoft products, food consumption products may not be offered for sale Protection of brand image, no supermarket flair wanted Prof. Dr. Florian Bien 9

10 3. Can a company impose on authorized (retail) dealers of a selective distribution system a general ban to sell via Market places? If it is prohibted, is it a hardcore restriction? Selective distribution can improve the image of a brand by setting standards to ensure product consistency and quality (Commission, Guidelines on Vertical Restraints, 2010/C 130/01, recital 107 lit. i.) Prof. Dr. Florian Bien 10

11 3. Can a company impose on authorized (retail) dealers of a selective distribution system a general ban to sell via Market places? If it is prohibted, is it a hardcore restriction? Legal uncertainty in Germany as there is still no decision of the Federal Court of Justice (Bundesgerichtshof) on the question. Diverging decisions by several Higher Regional Courts (Oberlandesgerichte) Ban of online market places as hardcore restriction: OLG Schleswig, (16 U Kart 154/13). The Moov Case (Intermediation Platform) : No hardcore restriction but compatibility with article 101 TFEU: OLG München, U (K) 4842/08 Internet-Auktionsplattform OLG Karlsruhe, U 47/08 Kart Schulranzen OLG Frankfurt, U 84/14 (Kart) Kammergericht (Berlin), U 8/09 Kart Scout. Prof. Dr. Florian Bien 11

12 3. Can a company impose on authorized (retail) dealers of a selective distribution system a general ban to sell via Market places? If it is prohibted, is it a hardcore restriction? cont d Oberlandesgericht Karlsruhe, Schulranzen ( satchel ) held that Application of CJEU s criteria for qualitative selective distribution Systems can be transposed on the (online) distribution of higher priced satchels Therefore, the prohibition of distribution via ebay.de does not restrict competition because it is based on objective criteria Highlighted presentation of the product to ensure the brand image Professional service and advice to meet the customer s need Prof. Dr. Florian Bien 12

13 3. Can a company impose on authorized (retail) dealers of a selective distribution system a general ban to sell via Market places? If it is prohibted, is it a hardcore restriction? cont d The Bundeskartellamt tends to qualify the general ban of distribution via online market places as illegal. See its Decision of B2-98/11 - Ascis Selection of other relevant case law on restrictions of online distribution: LG Frankfurt/M., O 128/13 Logo-Klauseln; LG Frankfurt/M., O 158/13 Funktionsrucksäcke. Bundeskartellamt, B5-144/133S Prof. Dr. Florian Bien 13

14 4. Can ASOFT prohibit its distributors from providing information to technical comparison platforms that compare and grades the various products present on the market, according to their technical specifications? Infringement of the customer s possibilities to compare a product vs. right of Asoft to protect confidential information. Prof. Dr. Florian Bien 14

15 5. What do you think of the commitments of ASOFT (commitment to practice the recommended prices on its website, commitment to offer free shipping, 3 years warranty) Recommended retail price is permitted by EU law (CJEU case 161/84 Pronuptia, recital 25) Restriction of competition only if same impact as indirect price maintenance. Prof. Dr. Florian Bien 15