Online sales restrictions – latest developments

Written on 7 Oct 2015

Sports footwear (Germany) – August 2015

The BKA has concluded that a number of distribution practices adopted by Asics, a manufacturer of sports shoes, infringe competition law. 

The practices investigated include: 

  • A prohibition on distributors advertising Asics’ products on price comparison websites. 
  • A restriction preventing distributors using Asics’ logo on third party websites when advertising a ‘click through’ to a distributor’s own website.
  • Selective distribution criteria that favour bricks and mortar retailers over online retailers.
  • The restriction on distributors from selling via online marketplaces such as Ebay and Amazon.

The BKA has not imposed fines but Asics has amended its distribution agreements. It is yet to be seen whether Asics will challenge the decision.

Clothing retail (Germany) – June 2015 

The BKA has dawn raided a clothing retailer, reported to be Peek and Cloppenburg, in relation to alleged online sales restrictions. Further details are awaited.

Online fashion retail (UK)

The CMA has opened an investigation into UK fashion industry. A decision is expected in October as to whether to continue with the probe, which is likely to involve online sales restrictions. 

Veterinary medicines (UK)

Vet UK has instigated a private claim for damages against Probiotic International, a supplier of veterinary medicines. 

Vet UK claims that Probiotic is charging lower prices for supplies to bricks and mortar resellers, disadvantaging online retailers, and that this practice infringes competition law. 

Whilst the nature of the pricing structure and the claim is unclear at this stage, the case is interesting for two reasons: 

  • It may shed light on the extent to which a supplier can set different prices for different sales channels. Whilst the prevailing view is that non-dominant companies are free to unilaterally set different prices for different sales channels the position is less clear where the customer has both online and bricks and mortar sales channels, particularly where these are operated by different subsidiaries and/or in different geographic markets.
  • It demonstrates that competition compliance risk is not just in investigation from a competition authority, but also private damages actions from disadvantaged companies.

Car manufacturers (Germany) 

The BKA is investigating suggestions that Ford Motor, Opel and PSA Peugeot Citroen are employing restrictions on how their vehicles are sold on internet platforms.