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Selective distribution - judgment of the KG Berlin final

The ruling by the KG Berlin has caused considerable legal uncertainty regarding the permissibility of sales via eBay by retailers as part of selective distribution systems. The KG Berlin has confirmed that a corresponding ban may be permissible if the branded products require distribution via a selective distribution system. However, it also contradicted the Munich Higher Regional Court that buyers on eBay were not a definable customer group. If, on the one hand, a manufacturer prohibits its dealers from selling branded goods on eBay or other platforms, but itself supplies discounters, the ban is not exempt from antitrust law even in the case of selective sales. The ban therefore also represents an inadmissible restriction on the customers to whom the retailer is allowed to sell, which is also contrary to antitrust law and cannot be exceptionally permitted by way of an individual exemption.

The BGH could have resolved this contradiction between the KG Berlin and the OLG Munich. However, this will not happen now, because where there is no plaintiff or appeal leader, there is no BGH judge. Depending on the circumstances, brand manufacturers must therefore find a sales structure that takes both judgments into account appropriately in order not to run the risk of violating antitrust law if they want to ban their dealers from selling on eBay.

This applies all the more to bans on Internet sales in sales structures other than selective sales. Here, the risks that bans or restrictions on specialist retailers selling products on internet platforms will be ineffective under antitrust law are even greater.

The current legal situation for traders who offer their goods and services in the EU, i.e. in various European legal systems, is – to put it carefully – confusing. Consumer protection has now been largely harmonized and will undergo further changes in Germany from June 13, 2014. However, each EU state still has its own regulations that are not regulated uniformly, for example in the area of general terms and conditions. The costs of having legal certainty in every EU state are associated with high costs, which particularly prevent small and medium-sized companies from boldly organizing sales throughout the EU.

The – planned – Common European Sales Law should apply in every EU state in addition to the respective national regulations and should not replace them. A corresponding choice of law is therefore necessary. The advantage is that legal uncertainty should be largely ruled out because this common European sales law applies equally in all countries. A high level of consumer protection is also guaranteed in this Common European Sales Law. However, this has the advantage for entrepreneurs that consumers are more likely to agree to a corresponding choice of law. In return, companies receive legal certainty for their sales.

It remains to be seen whether and how the member states will agree on the introduction of the Common European Sales Law, in particular whether it only applies to distance selling contracts. In addition, the important practical question of the legal enforcement of claims has not been answered. Entrepreneurs should nevertheless monitor developments in order to be up to date.

Dr. Christian Andrelang
andrelang law

Anwalt Gesellschaftsrecht und Handelsrecht

dr Andrelang, LL. M

Specialist lawyer for international business law

Specialist lawyer for commercial and corporate law


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