The Office for Competition and Consumer Protection (OCCP) recently issued a decision in which it concluded that Fordex and Intersport had entered into an anti-competitive agreement and violated Article 6 of the Competition Act (the equivalent of Article 101 of the Treaty on the Functioning of the European Union). According to the OCCP, the parties had agreed on minimum selling prices across Intersport's network of outlets (ie, a resale price maintenance agreement).
Fordex was an exclusive wholesale supplier of Nordea ski equipment in Poland. Intersport operated a network of retail outlets and an online shop offering sports equipment, including skis, ski boots and other accessories used by skiers. Based on the evidence gathered by OCCP officials during a dawn raid and later provided by Intersport as part of its leniency application, the OCCP found that Fordex and Intersport had agreed on minimum selling prices to which the retailer had adhered. The agreement was concluded via meetings and discussions held at a sporting trade fair in Munich, as well as email and phone discussions. As a result, Intersport's retail distribution pricing policy was agreed with its wholesale supplier for five years.
According to Fordex, the agreement had not been binding, as Intersport had charged different prices from those allegedly fixed by the parties and no disciplinary measures had been undertaken by the supplier as a result. In contrast, Intersport applied for leniency, confirming its participation in the resale price maintenance agreement and providing the OCCP with supporting evidence. Intersport argued that Fordex had been the instigator of the collusive behaviour and that the supplier's aim had been to unify the price of Nordea ski equipment in Poland and avoid price wars between retailers.
The OCCP was in no doubt that the resale price maintenance agreement had been concluded and applied in practice. The emails uncovered during the dawn raid and supplied as part of the leniency application confirmed these conclusions. According to the OCCP, the content of the emails proved that the parties had entered into the agreement and been aware of its illegal nature. The resale price maintenance agreement had been reached for wholesale distribution (ie, the upstream market), but had restricted competition for the sale of Nordea ski equipment on the domestic market (ie, the downstream market).
As regards Fordex's argument that Intersport had charged different prices than those fixed with the supplier, the OCCP stated that:
- the examples given had been exceptional cases (twice in the five-year period during which the agreement had applied); and
- it was not uncommon for entities participating in anti-competitive collusion to diverge from the terms of an agreement.
The OCCP's decision stressed that price agreements (even vertical ones) are serious infringements of competition law to which neither the de minimis rule nor the block exemption regulations can be applied.
Given that resale price maintenance agreements are considered serious infringements of competition law, the OCCP imposed a fine of PLN72,345 (approximately €16,707) on Fordex. This amount was due to the long-lasting nature of the breach and Fordex's leading role in the collusive behaviour. In contrast, Intersport was granted full immunity as the first (and only) leniency applicant in the case.
For further information on this topic please contact Katarzyna Terlecka or Pawel Kulak at Schoenherr Attorneys at Law by telephone (+48 22 223 09 00) or email (firstname.lastname@example.org or email@example.com). The Schoenherr website can be accessed at www.schoenherr.eu.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.