In October 2018, the German Federal Cartel Office (“FCO”) published its fourth paper in the series “Competition and Consumer Protection in the Digital Economy”. The paper assesses the legal status of online sales restrictions subsequent to the judgment of the ECJ in Coty (see VBB on Competition Law, Volume 2017, No. 12) and the judgment of the German Federal Court of Justice in Asics (see VBB on Competition Law, Volume 2018, No. 1). Overall, the FCO appears to favour a considerably narrower reading of the Coty judgment than the European Commission (as reflected in the Commission’s Competition policy brief of April 2018), and leaves open the possibility that market place bans might be considered as hardcore restrictions under the Vertical Agreements Block Exemption Regulation (“VABER”) taking into account specific market circumstances in Germany. The paper also expresses concerns over the development of “hybrid platforms”, and the risk that this might lead to the exclusion of independent dealers, a concentration of the market and a restriction of consumer choice.
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