In 2021, the German Federal Cartel Office (“FCO”) concluded three major proceedings on resale price maintenance and vertical price fixing. It fined five musical instrument companies a total of € 21 million for resale price maintenance and horizontal price-fixing, a backpack maker € 2 million for setting minimum retail prices, and consumer electronics manufacturer € 7 million for resale price maintenance. These cases illustrate that the FCO considers resale price maintenance a serious infringement for which it imposes significant fines.
In six decisions between the second half of 2020 and the first half of 2021, the FCO imposed fines totaling approx. € 21 million against manufacturers and retailers of musical instruments, namely manufacturers Yamaha Music Europa GmbH, Roland Germany GmbH and Fender Musical Instruments GmbH, and retailers Thomann GmbH and MUSIC STORE professional GmbH as well as responsible staff members. The FCO found that the manufacturers, together with at least these two retailers, had agreed not to undercut fixed minimum resale prices for several years. Two manufacturers also used price tracking software to monitor compliance with the minimum prices. Even though there was no or only sporadic enforcement and monitoring of compliance with the fixed prices concerning some products, on some occasions, the manufacturers had threatened or even imposed penalties, such as the suspension of supply. Further, the two retailers had also complained to and requested from the manufacturers that other retailers should also comply with the minimum prices. In addition, the FCO found that the two retailers had entered into horizontal price-fixing agreements in 13 cases between December 2014 and April 2018.
In the second case, the FCO imposed a fine totaling approx. € 2 million on German backpack maker Fond Of GmbH (“Fond Of”). The FCO found that between March 2010 and January 2019, Fond Of had agreed with some retailers that its school backpacks should generally be sold at the recommended retail price, monitored these restrictions on a regular basis and intervened in case the retailer deviated from the recommended retail price. In addition, the FCO found that at least until 2016, Fond Of restricted online sales and permitted only few selected retailers to sell its products online.
In the third case, the FCO fined high-end consumer electronics manufacturer Bose GmbH (“Bose”) approx. € 7 million for resale price maintenance between April 2015 and March 2018. Bose had agreed with authorized dealers to fix and even to raise retail prices for certain products in an attempt to keep prices at the level of the recommended retail price. The FCO found that Bose monitored retail prices and successfully intervened in several cases where dealers deviated from the recommended retail price.
In all three cases, the undertakings had cooperated and reached a settlement with the FCO.
Editor: Philipp Kirst
 For Yamaha and Thomann and Music Store between August 2005 and March 2017, for Roland and Thomann between January 2006 and March 2018 and Roland and Music Store between October 2009 and March 2018, and for Fender and Thomann and Music Store between January 2011 and March 2018.