{"id":8241,"date":"2018-08-12T11:30:32","date_gmt":"2018-08-12T09:30:32","guid":{"rendered":"https:\/\/www.legalmondo.com\/2018\/07\/contratti-distribuzione-prezzo-minimo-rivendita\/"},"modified":"2020-01-05T22:50:16","modified_gmt":"2020-01-05T21:50:16","slug":"resale-price-maintenance-exception-short-term-promotions","status":"publish","type":"post","link":"https:\/\/www.legalmondo.com\/de\/2018\/08\/resale-price-maintenance-exception-short-term-promotions\/","title":{"rendered":"Resale Price Maintenance \u2013 Exception for short-term promotions?"},"content":{"rendered":"

Agreements restricting competition are prohibited<\/strong> as anticompetitive agreements by Article\u00a0101<\/a> TFEU<\/a> unless<\/strong> the agreement\u2019s impact<\/strong> on trade or competition is not appreciable<\/strong> (cf. the EU Court of Justice<\/a> in the Expedia case, C-226\/11<\/a>, judgment of 13\u00a0December\u00a02012). Whether an agreement constitutes an appreciable restriction of competition or is in the „safe harbour“ can be assessed according to the European Commission<\/a>\u2019s De Minimis Notice<\/a>. Accordingly, an agreement is particularly appreciable if<\/strong> its object is to restrict competition. This applies in particular to so-called hardcore restrictions<\/strong>, such as vertical price maintenance<\/strong> (or resale price maintenance = \u201cRPM\u201d).<\/p>\n

Regarding a special offer for dietary products, the German Higher Regional Court of Celle<\/a> surprisingly took a different view and decided that even resale price maintenance could be considered non-appreciable and thus falling outside the ban of anticompetitive business practices under Article\u00a0101<\/a> TFEU<\/a> (judgment of 07.04.2016, Case 13 U 124\/15 [Kart]). In this case, the manufacturer made a special offer<\/strong> to a group of its customers (pharmacies) with a special purchase discount<\/strong>: once, for a limited period and limited to a maximum quantity. In return, the customers should commit themselves to „present the product clearly… and not fall below a resale price of EUR\u00a015.95<\/em>„.<\/p>\n

The Hanover Regional Court<\/a> had instead seen the agreement as an unlawful resale price maintenance<\/strong> (judgment of 25 August 2015, Case\u00a018 O 91\/15) \u2013 and now the German Federal Court<\/a> confirmed the same: the minimum prices<\/strong> specified here within the advertising campaign appreciably restrict competition<\/strong> and are thus banned as anticompetitive business practice under Article\u00a0101<\/a> TFEU<\/a> (judgment of 17 October 2017, Case\u00a0KZR 59\/16<\/a>). This corresponds to the case law of the EU\u00a0Court of Justice<\/a> in the Expedia case (see above) and the German Federal Court with regard to the sales requirement „one bar extra<\/em> „<\/strong> (i.e. without extra charge compared to the usual package size) of the Italian confectionery manufacturer Ferrero (judgment of 08.04.2003, Case KZR 3\/02<\/a>) \u2013 because the latter explicitly concerns „the scope for price increases resulting from the increased contents of the package<\/em>“ \u2013 not, however, the retailer\u2019s decision to set prices freely downwards.<\/p>\n

Practical tips<\/strong><\/h2>\n

Vertical price fixing<\/strong> is generally prohibited<\/strong>, whereas providing a manufacturer’s suggested retail price<\/strong> (MSRP, also \u201crecommended retail price<\/em>\u201d) and maximum selling prices are allowed<\/strong> \u2013 this is briefly the principle of German and European antitrust law on pricing frameworks. Furthermore, recommended retail prices and maximum selling prices (\u201cMSP\u201d) are subject to the restriction that they “ they do not amount to a fixed or minimum sale price as a result of pressure from, or incentives offered by, any of the parties<\/em>\u201d (Article\u00a04 lit.\u00a0a Vertical Block Exemptions Regulation<\/a>). That means:<\/p>\n