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

By Gabriele Accardo

On October 22, Germany’s Federal Cartel Authority (“FCA”) fined mattress producer Tempur Deutschland GmbH, Steinhagen, 15.5 million euros for imposing resale price maintenance 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 August 2005 and July 2011.

According to the FCA, due to the price transparency in the online channel, Tempur agreed with (or rather “forced”) the company’s retailers that they should offer various mattresses both online and in their brick-and-mortar stores only at the sales prices recommended by Tempur.

If prices of products sold online by retailers were below 5% the price recommended by Tempur and retailers did not subsequently alter their sales prices or repeatedly undercut the minimum sales prices set, they would experience delays in supply or even a discontinuation of supply. Tempur would also withdraw the retailer’s right to use the Tempur brand name for online search advertising on Google.

This is the third case concerning resale price maintenance issues in the mattress market (see Newsletter 1/2015, p. 20 for further background). However, the FCA stated that the investigations did not reveal any indication of anticompetitive horizontal agreements between mattress manufacturers. In August 2014 and February 2015 fines were also imposed on Recticel Schlafkomfort GmbH and Metzeler Schaum GmbH on account of resale price maintenance. After evaluating the evidence the Bundeskartellamt terminated the proceedings against two other manufacturers, two purchasing cooperatives and one online retailer for discretionary reasons.