The Bundeskartellamt has imposed a fine of €11.5m on CIBA Vision Vertriebs GmbH, Großostheim (“CIBA Vision”). The company is the market leader in the contact lenses business in Germany. It is accused of having illegally restricted the internet trade in contact lenses of its own brand and of having influenced the resale prices of internet traders in an anticompetitive manner.

CIBA Vision disputes the accusation from a factual and legal point of view, but has announced that it will abstain from lodging a legal appeal against the decision.

The offences include, apart from inadmissible and anticompetitive agreements on the exclusion of internet trading and the prevention in particular of the eBay trade in certain contact lenses, so-called “price management” measures.

CIBA Vision operated a surveillance and intervention system; several persons were in charge of monitoring and controlling the traders’ sales prices in the internet. If the resale prices of individual traders were at a certain level below the non-binding recommended retail price (“RRP”), CIBA Vision staff would contact those internet traders and try – in many cases successfully – to induce them to increase their sales prices.

The unilateral setting of RRP is generally permissible under existing law. However, if an RRP is enforced using pressure, this indicates that an agreement or concerted practice is in place which is prohibited under the Act against Restraints of Competition (ARC) or is at least intended. In the Bundeskartellamt’s view, any contact beyond the mere communication of an RRP and its emphasis by subsequently and repeatedly addressing the subject – in particular with regard to the trader’s current pricing behaviour – calls the RRP’s non-binding character into question and is to be regarded as an exertion of pressure.

A contact between supplier and trader regarding the resale price will be deemed a prohibited agreement or concerted practice in the vertical relationship within the meaning of section 1 of the German Act Against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen – GWB) if an arrangement materializes in which the supplier specifically seeks to coordinate the trader’s pricing policy and trader and supplier thus agree on the trader’s future pricing.

This may at the same time lead to illegal, so-called concerted practices in the horizontal relationship between the traders without their actually having to contact each other; this will certainly be the case if the companies observe the recommendation in the conviction that the other companies are acting in the same way.