EXCHANGE OF SENSITIVE INFORMATION AND “HUB & SPOKE” CARTELS 14th May 2014 B UNDES W ETTBEWERBS B EHÖRDE

Introduction  Complaints about price level  In 2011 BWB started investigations  Around 30 inspections regarding RPM since  Sanctions : around € 30 Mio (producers and retailers)  Industries: Food, insulating material and electronic devices  Ongoing/pending investigations/cases for retailers and producers B UNDES W ETTBEWERBS B EHÖRDE 2

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 en.aspx B UNDES W ETTBEWERBS B EHÖRDE 3

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 B UNDES W ETTBEWERBS B EHÖRDE 4

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. B UNDES W ETTBEWERBS B EHÖRDE 5

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 B UNDES W ETTBEWERBS B EHÖRDE 6

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 B UNDES W ETTBEWERBS B EHÖRDE 7

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. B UNDES W ETTBEWERBS B EHÖRDE 8

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 B UNDES W ETTBEWERBS B EHÖRDE 9

Thank you for your attention! twitter.com/BWB_WETTBEWERB B UNDES W ETTBEWERBS B EHÖRDE 10