Germany’s Federal Cartel Authority imposes further fines in mattress case

By Gabriele Accardo

Last 6 February Germany’s Federal Cartel Authority (“FCA”) fined mattress producer Metzeler Schaum Gmbh (“Metzeler”) Euro 3.38 million for allegedly imposing resale prices on retailers selling its products, in breach of Article 101 of the Treaty on the Functioning of the European Union (“TFEU”). The alleged anticompetitive conduct took place between 2007 and 2011, wherein the investigation was prompted by undertakings’ complaints.

According to the FCA, Metzeler repeatedly told its retailers verbally or in writing that sales prices were fixed prices without any scope for discount and that the products concerned were to be sold as “fixed price goods”. In particular, advertising could not contain any price comparisons, discount promises, strike-through prices or similar information in order to maintain a stable sales price. Resale prices were agreed mainly for forthcoming promotional measures to be implemented by the retailers.

As online sales became more important, large specialist shops and also online retailers complained about rival offers on the internet which did not comply with the fixed sales prices and asked for explanation or corrective action. As a result, Metzeler managed to oblige deviating retailers to “properly” advertise sales prices in future.

This is the second case concerning resale price maintenance issues in the mattress market.

In fact, on 21 August 2014 the FCA also fined Recticel Schlafkomfort GmbH (“Recticel”) for imposing resale price maintenance on its retailers (see press release),

From July 2005 to December 2009, representatives of Recticel agreed with its retailers that they should not offer certain strategic “Schlaraffia” products below the fixed sales prices.

In particular, Recticel offered selected online dealers the opportunity to advertise themselves as so-called “authorized Schlaraffia online dealers” using Recticel’s logo and data provided they offered prices which were not lower than the set minimum sales prices for the strategic product lines.

In case of non-compliance with this requirement, dealers were barred, albeit in exceptional cases, from Google-Adwords or from eBay under eBay’s brand protection programme for the unauthorized usage of manufacturers’ data. Some retailers were also threatened with delays in supply or with threats of legal action if they did not adjust the price of their offers to the minimum sales prices set by Recticel.

In both investigations against Metzeler and Recticel, the FCA found no indications of anti-competitive horizontal agreements between the mattress manufacturers. Proceedings against two other manufacturers are still ongoing.