ECN Brief

Germany | Fines Imposed for Resale Price Maintenance in Mattress Case

Germany | Fines Imposed for Resale Price Maintenance in Mattress Case

On 6 February 2015 the Bundeskartellamt (BKartA) fined Metzeler Schaum GmbH (Metzeler) € 3.38 million for imposing resale price maintenance on retailers selling its products.

The proceedings were initiated in response to complaints from within the market. As a result, in August 2011, the BKartA conducted dawn raids at various companies within the sector.

From early 2007 to July 2011 representatives of Metzeler repeatedly agreed with the company’s retailers that they should generally offer certain mattresses in their brick-and-mortar stores and online at the sales prices set by the manufacturer.

Prices were agreed mainly for forthcoming promotional measures to be implemented by the retailers. In the run-up to these promotional campaigns sales representatives of Metzeler had repeatedly informed retailers and representatives of purchasing cooperatives verbally or in writing that the sale prices set by Metzeler were fixed prices without any scope for discount, and that the products concerned were to be sold as "fixed price goods". Accordingly, advertising was not to contain any price comparisons, discount promises, strike-through prices or similar information in order to maintain a stable sales price.

The growing importance of online sales and the price transparency this offers threatened to destabilize this price-fixing system. As a result an increasing number of large specialist shops and also online retailers complained about rival offers in the internet which did not comply with the fixed sales prices and asked for explanation or corrective action. Subsequently Metzeler managed to induce the deviating retailers to “properly” advertise sales prices in future.

Manufacturers may not impose binding obligations on their retailers concerning the price to ask for a specific product. Only non-binding price recommendations are allowed. A binding agreement on a certain final sales price between a manufacturer and its retailer, however, is a prohibited agreement which restricts competition in the sense of Sect. 1 ARC and Article 101 TFEU.

In setting the fine the BKartA took account of the fact that Metzeler had cooperated and that a settlement could be reached. The decision is final.

Proceedings against two other manufacturers are still ongoing.

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