09.06.2016
[Berlin, ] The request for a preliminary ruling which the Frankfurt Higher Regional Court has filed with the ECJ concerns the question of whether branded goods manufacturers have a right to use a selective distribution system and, if so, whether they may prohibit sales of their products on platforms such as Amazon. The Federal Cartel Office has sharply criticized the platform sales ban in similar cases.
Having represented Parfümerie Akzente GmbH, a company which operates a chain of perfume stores in southern Germany and one of the largest perfumery/cosmetic online traders, in first-instance proceedings, Görg ICP specialist Dr. Oliver Spieker is now defending it against luxury perfumes manufacturer Coty before the European Court of Justice (ECJ). The case was referred to the ECJ by the second-instance court, the Frankfurt/Main Higher Regional Court, which suspended its own proceedings and requested the ECJ to give a preliminary ruling on several questions which will be significant for the outcome of the dispute. Akzente was known to have been operating an online shop through Amazon since some time. This situation prompted Coty to seek to prohibit Akzente from selling certain branded products that Coty had supplied by adding a condition regarding online sales to the parties’ selective distribution agreement.
Since Coty was of the opinion that Akzente had infringed the condition, it filed a claim against Akzente with the Frankfurt/Main Regional Court. This claim was dismissed. At the same time as the first-instance proceedings by Coty against Akzente were being heard, proceedings by the backpack maker Deuter against one of its retailers were also pending. The Deuter case also involves the prohibition of sales via third-party Internet platforms such as Amazon. In the Deuter case, the Frankfurt/Main Higher Regional Court decided not to request a preliminary ruling from the ECJ and allowed Deuter’s claim. As a result, the parties in that case are now involved in appellate proceedings before the Federal Court of Justice. On the other hand, in the proceedings by Coty against Akzente, GÖRG has succeeded in convincing the Frankfurt/Main Higher Regional Court to file a request for a preliminary ruling with the ECJ notwithstanding the decision in the recent Deuter litigation. GÖRG partner Dr. Oliver Spieker commented: “The request for a preliminary ruling by the Frankfurt/Main Higher Regional Court shows that it no longer has sufficiently clear answers to a number of questions which it decided against the distributor in the Deuter proceedings”. He went on to add: “The request to the ECJ for a preliminary ruling will also play a role in the Deuter proceedings before the Federal Court of Justice since that court will be able to take the ECJ’s opinion into consideration. During the last few years, decisions concerning online sales on platforms such as eBay and Amazon have been limited exclusively to decisions by first-instance courts and many sectors have been waiting for the issue to be resolved by the final court of appeal.”
The GÖRG competition law specialist Dr. Oliver Spieker has experience in successfully representing distributors in a number of first-instance proceedings.
