Selective distribution systems

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Selective sales systems are (according to the legal definition of Art. 1 Para. 1 lit. e Regulation 330/2010 EU (PDF) ) sales systems in which the provider undertakes to sell the contract goods or services directly or indirectly only to dealers who are selected on the basis of specified characteristics, and in which these dealers undertake not to sell the goods or services in question to dealers who are not authorized for distribution within the territory specified by the supplier for the operation of this system.

Such distribution systems are primarily used to maintain the reputation of brands. A manufacturer of luxury watches, for example, will regularly have an interest in ensuring that its products are only offered by jewelers and not by discounters. This purpose may also be useful for the manufacturer (preservation of the value and prestige of the products purchased), but selective distribution systems may nevertheless be inadmissible. Various courts are increasingly deciding that such distribution systems for the exclusive protection of a brand image are inadmissible under antitrust law.

details

A distinction is made between open systems, simple and qualified specialist trade loyalty and quantitative selective sales.

Antitrust admissibility

With an open sales system , the manufacturer selects his customers according to (any) criteria, but does not give them any specifications regarding further sales. Since every entrepreneur is fundamentally free to design the sales, such an approach - within the limits of §§ 19, 20 GWB - is harmless.

If a manufacturer relies on the ( simple ) specialist trade relationship , he instructs his customers to only deliver to authorized resellers. These are typically specialist dealers who are normally prohibited from selling to anyone other than end customers. The ECJ approves this distribution structure as long as the resellers are selected on the basis of objective factors. Due to the fundamentally non-anticompetitive motivation of such distribution systems as mentioned at the beginning, the ECJ already denies the factuality of Art. 101 (PDF) TFEU (and thus also of Section 1 GWB ). However, the principle of proportionality must be preserved; In particular, the selection criteria must be based on ensuring the correct use of the goods and maintaining their reputation, and they must also be in the interests of consumers.

In the case of a qualified specialist trade relationship , the manufacturer demands additional obligations, such as purchase obligations. Such agreements are anti-competitive i. S. d. of Article 101 para. 1 TFEU and § 1 GWB, partially offset by the Block Exemption Regulation no. 330/2010 (PDF) approved.

The quantitative selection of buyers limits the number of potential resellers even further, to a maximum number determined by the manufacturer. Even if such a customer meets all of the manufacturer's quality criteria, a delivery will be refused if this number is reached. The Block Exemption Regulation No. 330/2010 is also relevant here.

If a distribution system is not anti-competitive within the meaning of § 1, § 19 or § 20 GWB, it cannot be attacked via § 21 GWB, the boycott ban.

Questions of fairness law

If a selective distribution is not objectionable under antitrust law, further problem areas can arise at the level of fair trading law, in particular with regard to the enforceability of the system against dealers and third parties. The courts, for example, prohibit house bans on test buyers used by manufacturers to monitor them.

Individual evidence

  1. ↑ Sebastian Louven on platform bans on Telemedicus v. July 26, 2017 https://www.telemedicus.info/article/3214-Plattformverbote-Generalanwalt-Wahl-zur-EuGH-Vorlage.html
  2. ↑ Emmerich, Antitrust Law. 13 ed. § 5 marg. 25 ff.
  3. ↑ See Loewenheim / Meessen / Riesenkampff cartel law. 2 ed. § 20 GWB marginal no. 92
  4. ↑ Liebscher / Flohr / Petsche, Handbook of the EU Block Exemption Regulations. 2nd edition § 8 marginal no. 12
  5. ^ Basic European Court of Justice, judgment of October 25, 1977 - Case 78/70 - Slg. 1977, 1875 - Metro / SABA (Metro I).
  6. ↑ Liebscher / Flohr / Petsche, Handbook of the EU Block Exemption Regulations. 2nd edition § 8 marginal no. 13
  7. ↑ See for the eligibility criteria: EUROPEAN COMMISSION: Guidelines for Vertical Restraints (PDF) . Item 176 ff.
  8. ↑ Emmerich, Antitrust Law. 12 ed. § 5 marginal no. 28 ff.
  9. ↑ See LG Mannheim, judgment of March 14, 2008 - 7 O 263/07 Kart - WuW / E DE-R 2789 = GRUR-RR 2008, 253 - school bags
  10. ↑ BGH, judgment of April 14, 1965 - I b ZR 72/63 - BGHZ 43, 359 = NJW 1965, 1527 - warning sign. Critical Emmerich, Unfair Competition. 9 ed. § 6 marginal no. 25: "In terms of the matter, this means nothing other than the granting of quasi-police powers to companies that practice sales relationships on a dubious contractual basis"