As early as 2009, the Federal Cartel Office imposed fines on companies that made non-binding recommendations for resale prices but put “psychological pressure” on their dealers to comply with these recommendations. At the turn of the year 2015/16, the Federal Cartel Office drew attention again with a decision in a similar constellation. The Federal Cartel Office has imposed a fine of approximately EUR 130,000 on the toy manufacturer LEGO for pricing that violates antitrust law: Affected were dealers of so-called “highlight items” in northern and eastern Germany in 2012 and 2013, which were sold by LEGO sales employees Customers were urged to increase final sales prices. For this purpose, LEGO recorded the “target prices” of the affected “highlight items” as well as selected retailers in regularly updated lists. If the target prices were not met, LEGO took special measures to enforce the target prices: In some cases, LEGO threatened retailers with a shortage of delivery quantities or even with non-delivery if the final sales prices stipulated in the lists were not met. In some cases, LEGO linked the amount of the discount on the dealer purchase price at LEGO GmbH to compliance with the target prices in the lists. After initiating the antitrust proceedings, LEGO was able to reach an amicable end to the proceedings through its own clarification of the facts and organizational and personnel consequences. However, the decision on the fine imposed is not yet legally binding, so LEGO can take action against it.
This new decision is instructive in many ways. The Federal Cartel Office is taking an increasingly closer look at cases of price fixing across all sectors. It becomes particularly critical for the companies affected when a certain price level is not only desired - which is permissible - but is linked to concrete measures such as here. At the same time, every company should organize itself in such a way that non-binding price recommendations are not “accompanied” by “measures” for enforcement. If the child has already fallen into the well, it is advisable to cooperate with the antitrust authorities right from the start in order to mitigate sanctions such as fines.
##Those who observe the following principles act in a legally compliant manner:{.h4}
– The manufacturer or importer may specify to the dealer the maximum prices that the dealer may charge. However, specifications for minimum or fixed sales prices are prohibited.
– Non-binding recommendations for resale prices are always permitted. It is also permissible to explain these recommendations.
– However, a recommendation loses its non-binding character if it is given emphasis, for example by granting economic incentives, such as better purchasing conditions, or threatening disadvantages, such as slower or non-existent delivery of products.
