{"id":6787,"date":"2018-04-12T07:00:51","date_gmt":"2018-04-12T05:00:51","guid":{"rendered":"https:\/\/www.legalmondo.com\/?p=6787"},"modified":"2020-01-05T21:05:20","modified_gmt":"2020-01-05T20:05:20","slug":"germany-ban-of-price-comparison-engines-and-advertising-on-third-party-platforms","status":"publish","type":"post","link":"https:\/\/www.legalmondo.com\/pt-pt\/2018\/04\/germany-ban-of-price-comparison-engines-and-advertising-on-third-party-platforms\/","title":{"rendered":"Germany – Ban of price comparison engines and advertising on third-party platforms"},"content":{"rendered":"

According to the EU E-commerce sector inquiry, over 50% of Internet marketplaces and 36% of retailers supply data-feeds to price search engines such as Idealo<\/a>, Google Shopping<\/a>, or Shopzilla<\/a>. By contrast, around 10% of dealers are subject to price comparison engine bans (see Commission Staff Working Document SWD(2017) 154 final<\/a>, S.\u00a032 Figure B.\u00a04 and p.\u00a037 European Commission, Final report on the E-commerce Sector Inquiry<\/a>, p.\u00a010).<\/p>\n

However, the Federal Court of Justice<\/a> recently confirmed a price comparison engine ban<\/strong> as anti-competitive and void. In the concrete case, Asics generally banned retailers in Germany from supporting price search engines in online distribution:<\/p>\n

“In addition, the authorized … dealer shall not … support the functionality of price comparison engines by providing application-specific interfaces (“APIs”) for these price comparison engines.”<\/em><\/p>\n

In addition, the agreement contained an extensive ban on advertising on third-party platforms<\/strong>: Asics prohibited its authorized dealers from allowing third parties to use Asics\u2019 trademarks in any form on the third party’s website to direct customers to the authorised Asics dealer’s website.<\/p>\n

Asics’ distribution agreement was first investigated by the German competition authority Bundeskartellamt<\/a> as a pilot case (another pilot case was started against Adidas because many sports retailers complained about the Internet resale restrictions of sports equipment manufacturers). In 2015, the Bundeskartellamt decided that Asics’ ban on price comparison engines was contrary to antitrust law<\/strong>, as it would infringe Article\u00a0101 (1) TFEU<\/a>, sec.\u00a01 Act against Restraints on Competition<\/a>. Reason given was that such ban would primarily aim at controlling and limiting price competition at the expense of consumers. This decision was first confirmed<\/strong> by the Higher Regional Court of D\u00fcsseldorf (decision of 5 April 2017, case no. VI-Kart 13\/15 (V), see the Legalmondo article here<\/a>).<\/p>\n

Now, the decision has been reconfirmed by the Federal Court of Justice (decision of 12\u00a0December 2017, case no.\u00a0KVZ 41\/17). This Asics ruling is particularly noteworthy because it is the first German court ruling following the Court of Justice of the European Union<\/a>\u2019s Coty ruling on platform bans (see the Legalmondo article here<\/a>). It is therefore a first indication of how the courts will deal with Internet resale restrictions <\/strong>in the future.<\/p>\n

Thus, the Federal Court of Justice states that the general ban on price search engines “at least” restricted passive sales to end consumers<\/strong> (para.\u00a023, 25) \u2013 such a restriction would even be the intended purpose of such ban. According to the court, the admissibility of general platform bans pursuant to the Coty judgment (see here<\/a>) would not imply the admissibility of general price comparison bans (para.\u00a028 et seq.). In particular, the “combination of restrictions<\/em>” \u2013 i.e. ban of price comparison engines and advertising on third-party platforms \u2013 would make the difference<\/strong>. For it did not ensure that prospective customers got “practically substantial access<\/em>” to the dealer website (para.\u00a030) \u2013 whereby the Federal Supreme Court leaves open what is sufficient or necessary to provide such \u201csubstantial access<\/em>\u201d; in such case, general price comparison engine bans could continue to be permissible.<\/p>\n

Practical Tips:<\/strong><\/p>\n

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  1. At EU level, neither the Court of Justice<\/a> nor the European Commission<\/a> have taken a position on the validity of general bans on price comparison engines. In the United Kingdom, however, the Competition and Markets Authority<\/a> takes a similarly critical view of price search engine bans (“BMW changes policy on car comparison sites following CMA action<\/a>“) as German administrative practice and jurisdiction.<\/li>\n
  2. In practice, the following differentiation<\/strong>, already indicated by the Higher Regional Court of D\u00fcsseldorf (Asics) and the Higher Regional Court of Frankfurt (Deuter), is thus likely to apply<\/strong> according to the Federal Supreme Court:<\/li>\n<\/ol>\n