Distribution-related antitrust law remains in the focus of competition authorities

In 2024, Germany’s Federal Cartel Office (Bundeskartellamt) imposed fines in several cases of vertical price fixing. These concerned manufacturers of telecommunications and network technology as well as of protective clothing. In both cases, the Federal Cartel Office did not – like most – prosecute the (specialist) retailers involved.

The European Commission identified various practices by the chocolate and biscuit manufacturer Mondelez, such as restricting the sales territory of wholesalers, which jeopardised cross-border trade and thus the EU’s objective of creating an integrated single market. Mondelez was fined EUR 337.5 million (for details, see: Noerr Insights). The European Commission also imposed a fine of EUR 5.7 million on Pierre Cardin and its largest distributor Ahlers in the apparel sector for inadmissible territorial protection granted to Ahlers.

Not only the competition authorities, but also the courts have taken action:

Non-compete clauses: The Dusseldorf Higher Regional Court (Oberlandesgericht Düsseldorf) found that non-compete clauses and exclusive purchasing agreements in supply contracts are not anti-competitive per se, even with market shares above 30%. However, non-compete clauses must be closely scrutinised especially when they lead to foreclosure effects. The judgment provides several aspects that may be relevant when assessing the impairment of market access (for details, see: Noerr Insights).

Price parity clauses: German courts have already ruled on price parity clauses in hotel booking platforms on several occasions (Competition Outlook 2022). A distinction must be made between (i) wide parity clauses, which generally prohibit hotels from offering their rooms anywhere cheaper than on the booking platform, and (ii) narrow parity clauses, which merely prohibit hotels from offering their rooms cheaper on their own website. In the Booking.com case, the Court of Justice of the European Union has now ruled that neither Booking.com’s narrow nor its wide parity clause qualifies as a necessary ancillary restraint and therefore generally fall within the ban on cartels. The Court stated that in the case of ancillary restraints, it is not a matter of ensuring the economic success of the main operation, which is why mere negative effects on profitability do not suffice as justification. While the Vertical Block Exemption Regulation (“VBER”) explicitly provides that wide parity clauses are not exempted by the VBER, the Court of Justices of the European Union did not rule out that narrow parity clauses could be covered by the VBER, but ultimately left the decision open.

Exclusivity rebates: The Court of Justice of the European Union annulled the EUR 1.06 billion fine imposed on Intel in 2009 for abusing its dominant market position in the field of microprocessors (allegation of market foreclosure), thereby ending the 15-year legal dispute. The Court emphasised that exclusivity rebates granted by a dominant company are not anti-competitive per se. The decisive factor is the effect on competition, which the competition authority can examine using the “as-efficient competitor test”. In essence, this test involves analysing whether an equally efficient competitor could apply the same discount system as the dominant company in a way that covers its costs. The judgment contains important clarifications in this regard (for details, see: Noerr Insights); nevertheless, establishing rebate systems that comply with competition law remains an ongoing issue. You can find help with an initial assessment on Noerr Insights.

This article is part of the Competition Outlook 2025. You can find all Competition Outlook articles here.