1. CASE SUMMARY
A. Summary of facts
The manufacturers (respectively their importers), Yamaha, Roland and Fender and the retailers, Thomann and Music Store, agreed to comply with the minimum sales price requirements set by the manufacturers. If the minimum sales prices were undercut, the staff responsible at Yamaha, Roland and Fender would regularly contact Thomann and Music Store and demand them to adjust their sales prices, which they also did in many cases. To some extent, Yamaha and Roland also used a price tracking software to monitor end customer prices. In individual cases, the manufacturers threatened retailers with (or even actually) sanctions, such as a suspension of supply, worsening of terms and conditions or termination of the agreements.
There was no or only sporadic enforcement or monitoring of the minimum sales prices for some products. The retailers did moreover often not comply with the minimum sales prices either by applying lower prices or by circumventing them (e.g. by bundling several products).
At the same time, in complaints addressed to Yamaha, Roland and Fender, the retailers Thomann and Music Store demanded that other specialist musical instrument retailers also observe the minimum prices. This was partly in reaction to complaints that their own prices were too low.
The resale price maintenance practices in the case of the business relation between Yamaha and the retailers Thomann and Music Store took place between 1 August 2005 and 31 March 2017.
Regarding the business relation between Roland and the retailers, the resale price maintenance practices took place from 1 January 2006 (in the case of Thomann) and from 1 October 2009 (in the case of Music Store), until 31 March 2018.
The resale price maintenance practices in Fender’s business relation with Thomann and Music Store had been in place between 1 January 2011 and 31 March 2018.
In the course of the proceedings concerning resale price maintenance, indications of horizontal price fixing agreements between the retailers Thomann und Music Store also emerged. Between 21 December 2014 and 27 April 2018, Thomann and Music Store had agreed in thirteen cases to increase the prices of individual musical instruments or additional products. However, these agreements only led to short-term price modifications.
All described practices of the manufacturers (respectively their distributors) and of the retailers took place in Germany.
B. Legal analysis
The case involves two object infringements: a vertical price fixing arrangement between the manufacturers/importers concerned and their retailers and a horizontal price cartel between the retailers concerned. Once the facts were established, the legal analysis was therefore very straightforward.