BUNDESWETTBEWERBSBEHÖRDE
EXCHANGE OF SENSITIVE INFORMATION AND
“HUB & SPOKE” CARTELS
14th May 2014
BUNDESWETTBEWERBSBEHÖRDE
Introduction
 Complaints about price level
 In 2011 BWB started investigations
 Around 30 inspections regarding RPM since
 Sanctions 2012-14: around € 30 Mio (producers and retailers)
 Industries: Food, insulating material and electronic devices
 Ongoing/pending investigations/cases for retailers and producers
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Guidance on vertical price maintenance (Standpunkt):
 Draft published in June 2013
 Consultation until August 2013
 Evaluation
 2nd consultation ongoing
 Public debate
Structure:
1. Legal framework
2. List of conduct that is considered illegal by the FCA as well as
explaning compatible conduct
http://www.bwb.gv.at/Aktuell/Seiten/LeitlinienzuvertikalenPreisbindung
en.aspx
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Negative List I
 Oral or written coordination or fixing of resale prices /
minimum prices (for promotion) between retailers and
suppliers
 Agreement on bonuses, rebates and other incentives as
remuneration for observance of agreed prices
 Applying penalties, suspension of deliveries or other
disadvantages for non observance of agreed prices
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Negative List II
 Penalties applied or the threatening with a reduction of purchase
prices by a retailer to a supplier who fails to implement identical or
similar resale prices when selling its products to other retailers
 The retailer demands as condition for a raise of the purchase price
that a particular resale price level is observed by other retailers
 A supplier communicating to retailers in advance time and amount
of resale price changes of other retailers
 Agreements between suppliers and retailers on exclusive time
frames for promotions or on coordination of the timing of
promotional activities by different retailers.
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Negative List III
 Agreements between supplier and retailer with the purpose to
safeguard that the resale prices of other retailers keep within a
particular frame or to safeguard a best price clause (preventing
underpricing of a retailer's particular product by competing retailers)
or a most favoured customer clause (aiming at uniform prices at
wholesale and/or retail level)
 Participation of a retailer in the supervision of resale prices (price
monitoring) by a supplier or vice versa: eg obligations or incentives
for suppliers to communicate to retailers deviations from
recommended/minimum prices by other retailers, obligations or
incentives for retailers to communicate to suppliers deviations from
recommended/minimum prices by other retailers
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Positive List I
 Recommendation of resale prices to a retailer provided
the recommendation is in fact and legally non binding
 Promotional activities have to be organized
autonomously by retailers. Information exchange with
supplier is legal only to the extent that it is necessary for
the planning of quantities
 Independent, individual price monitoring is acceptable
for retailers and suppliers on their respective markets
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Positive List II
 Suppliers are allowed to clarify towards retailers their
marketing strategy when submitting non binding price
recommendations, unless this supports directly or
indirectly horizontal coordination of retailers
 Maximum resale prices in principle not considered
problematic provided it does not amount to a minimum
or fixed sale price as a result of pressure from, or
incentives offered by, any of the parties.
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Points for discussion:
 Short sales periods
 § 101 (3) TFEU: point 225 of the EU guidelines on
verticals
 Effects (theory of harm)
 Hub & Spoke – level of proof
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Thank you for your attention!
www.bwb.gv.at
twitter.com/BWB_WETTBEWERB
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