Today the Bundeskartellamt has published a guidance note on the prohibition of vertical price fixing in the brick-and-mortar food retail sector. The aim of the guidance note is to explain to companies in the sector, also with the help of practical examples, the background, purpose and scope of the prohibition of vertical price fixing.
Before its publication the guidance note was presented for public consultation. The authority received many comments on the document, among others from the trademark association Markenband e.V., the German Retailers' Association (HDE), and national and international lawyer organisations. The Bundeskartellamt has evaluated the comments received and taken account of several of them in its final document.
Andreas Mundt, President of the Bundeskartellamt:
"In recent years we have conducted a significant number of proceedings in which we intensely examined the business relations between retailers and manufacturers in the food sector. With our guidance note we aim to provide small and medium-sized companies, in particular, with guidance to enable them to walk the thin line between necessary communication processes on the one hand and illegal behaviour on the other. The practical examples can also be of relevance for other economic sectors, provided that their market conditions are similar to those in the brick-and-mortar food retail sector."
In a major proceeding which was concluded in 2016, the Bundeskartellamt imposed fines totalling 260.5 million euros on 27 companies (retailers and manufacturers) in the food retail sector for having engaged in price fixing activities (see press release of 15 December 2016).
Vertical price fixing is prohibited both under German and European law and can only be exempted from the prohibition of anti-competitive agreements in exceptional cases. The European Commission has published guidelines on vertical restraints which contain statements on the interpretation of the prohibition of vertical price fixing under European law. The Bundeskartellamt's guidance note is intended to complement the Commission's guidelines by adding advice on practices used in the brick-and-mortar food retail sector.
The "Guidance note on the prohibition of vertical price fixing in the brick-and-mortar food retail sector" along with the comments received are available on the website of the Bundeskartellamt (German version). An English translation will be provided soon.