Swiss WEKO confirms its practice on the restriction of online sales

By order of 30.06.2014, the Swiss Competition Commission (WEKO) in Berne approved a settlement between the coffee machine manufacturer Jura Elektroapparate AG and the secretariat of WEKO and concluded the proceedings.

Jura operates a selective distribution system. So far, the manufacturer from Niederbuchsiten agreed with its distributors that they do not engage in online sales of the products. Jura now undertakes to permit online sales by its reselling partners through the Internet “in principle” (WEKO press release of 16.07.2014, Link). The Berne based cartel authority thereby confirms its practice originating at the latest with the Electrolux AG/V-Zug AG (11.07.2011) decision and states that a total prohibition of online reselling in a selective distribution system is always a “significant impediment of competition” in the meaning of Art. 5 para. 1 of the Swiss Cartel Act (“Kartellgesetz”) and, unless justified on grounds of economic efficiency, usually unlawful.

In particular, the concern of the manufacturer that online distributors could benefit as free-riders from the professional advice in stationary specialist distribution, was already discounted by the WEKO in 2011. According to the WEKO, total prohibition of online reselling is not in any event justified by this phenomenon since proportionate means such as fixed remuneration for stationary specialist traders are available. The WEKO’s position thereby is substantially in line with the ECJ, which, some months after the Electrolux AG/V-Zug AG decision, came to a very similar conclusion in its “Pierre Fabre” (13.10.2011, C-439/09) decision.

Apart from the accusation of restricting online distribution, the WEKO also considered possible restrictions of parallel imports by the limitation of warranties for appliances purchased by unauthorised traders abroad and on the Internet. According to the official WEKO announcement, these accusations turned out to be unsubstantiated.