Germany: The Bundeskartellamt intensifies the fight against resale price maintenance practices

This article summarizes important recent developments in resale price maintenance in Germany. The investigation of this practice has been a priority of the Bundeskartellamt, the German competition authority. In 2009, a series of severe fines (in particular the Ciba Vision decision) were imposed on various companies and the Bundeskartellamt applied a very strict legal assessment on the practices concerned. It appears that, in the Bundeskartellamt’s view, any contact beyond the mere communication of a recommended resale price and its emphasis by subsequently and repeatedly addressing the subject was to be regarded as an illegal exertion of pressure. In 2010, the Bundeskartellamt conducted spectacular dawn raids at the premises of a large number of significant retail groups and manufacturers of branded goods. These dawn raids were widely commented upon. Faced with various critics and complaints from the concerned companies regarding legal certainty, the Bundeskartellamt took the unusual decision to draft an informal and non-binding notice setting out the preliminary analytical principles it would follow in its assessment of the legality of price recommendations and price-related communications and practices between suppliers and retailers. This analysis covers not only vertical aspects of the law on agreements and concerted practices that may restrict competition but also considers “hub & spoke” issues. However, many observers consider that many issues are still not sufficiently clarified.