A supplier that obligates a distributor (such as a retailer, agent or franchisee) to charge fixed or minimum prices runs the risk of breaching the cartel prohibition (see also this blog). Such an obligation is also known as resale price maintenance or RPM. One of those risks is nullity of that obligation. This may also apply to the termination of an agreement. The Amsterdam Court recently confirmed this in an agency dispute between a tour operator and an online travel agent.
The reason for the dispute were the discounts that the travel agent granted when offering the tour operator’s trips via the Internet. For that reason the tour operator reduced the travel agent’s commission and soon after that terminated the agency agreement. The Court found that that constituted (indirect) resale price maintenance and therefore an agreement that had the restriction of competition as its object. With reference to the Batavus judgment, the Court subsequently found that the termination of the agency agreement was in breach of the cartel prohibition.
Another interesting aspect is that the Court found that the travel agent had sufficiently substantiated the facts and circumstances and that in the case of a hard-core restriction, such as resale price maintenance, an economic analysis of the consequences, effects and appreciability on the relevant market is not required. In the Court’s opinion, the tour operator had furnished insufficient facts and circumstances from which it was apparent that competition had not been restricted. That is remarkable, because reliance on competition law has frequently failed in earlier cases because the claimant had provided insufficient prima facie evidence of restriction of competition.
The judgement makes it clear that the notorious IATA judgment, which sets out the obligation to furnish facts and produce evidence that a claimant must meet when relying on competition law, is not an impossible threshold. The Court added that it does not suffice for a defendant in its turn to merely refer to the claimant’s obligation to furnish facts and produce evidence. As in any other case, a defendant must adequately dispute the claimant’s sufficiently substantiated arguments.