Following on from Pat Treacy’s post, the German competition authority on 23 December closed its investigation into the rebate systems of Bosch, which had put dealers at a disadvantage when making sales online rather than via their ‘bricks and mortar’ stores. If dealers used both channels, the more turnover they generated online the less rebates they received. The concern of the Bundeskartellamt (BKA) was that this ‘dual-price’ rebate system created an incentive for dealers to limit sales online. Bosch has agreed to write to all of its dealers informing them that it will no longer discriminate in its rebates between online and bricks and mortar sales.
The BKA’s stance will come as no surprise: any attempt to disadvantage those using the internet is likely to give rise to concern to a competition authority (if it finds out), unless there is a very good objective justification for such discrimination (in practice, only genuine health and safety concerns seem to be a safe bet). It is, however, interesting to note that the BKA and other EU authorities have been willing to close investigations relating to online provisions/restrictions if the parties in question have agreed to drop them and inform relevant third parties of the change in policy. Given the lack of reasoned decisions on this subject giving considered guidance, this lenient approach is to be welcomed. Undoubtedly, this approach may change in time as more and more statements by authorities make clear what they consider to be unacceptable.