In line with settled EU case law, the Supreme Court ruled that the Leeuwarden Court of Appeal was right to qualify the termination of a distribution contract by bicycle supplier Batavus under pressure from one of its largest customers as a concerted practice having an anti-competitive object of which there was no need to consider its actual effects. However, contrary to what the court claimed, it was necessary to consider whether competition had been restricted to an appreciable extent, even if an anti-competitive object had been established.
Batavus was pressured into terminating the distribution contract with the plaintiff by Euretco - one of Batavus's largest customers. Euretco was displeased with the plaintiff's low resale prices on the Internet for Batavus bicycles and threatened to stop purchasing bicycles from Batavus if the plaintiff's contract was not terminated. Batavus itself did not consider the low prices problematic.
The Supreme Court agreed with the court of appeal that the termination constituted a concerted practice with the anti-competitive object of resale price maintenance, since the termination was not a unilateral decision by Batavus, but one taken under pressure and aimed at ending the price competition by the plaintiff. However, the court was wrong in finding that it was no longer necessary to consider the appreciability of the concerted practice since it qualified as a hardcore restriction.
The Supreme Court has referred the matter to the Arnhem Court of Appeal for a decision.
For further information on this topic please contact Jolling De Pree or Erik H Pijnacker Hordijk at De Brauw Blackstone Westbroek by telephone (+31 70 328 53 28), fax (+31 70 328 53 25) or email ([email protected] or [email protected]).