Agency Continues Resale Price Maintenance Battle In Food And Retail Sectors

On November 10 2014 the Competition Agency announced that it had concluded another proceeding dealing with resale price maintenance, as prohibited under Article 8 of the Competition Act1, which mirrors Article 101 of the Treaty on the Functioning of the European Union.

Although the full decision has not yet been published, the agency's stance on resale price maintenance can be inferred from the announcement and earlier decisions in similar resale price maintenance cases in the food and retail sectors.

The agency has had the authority to impose penalties independently since October 1 2010. Previously, the imposition of penalties fell under the competence of the misdemeanour courts. Due to an inappropriate or imprecise - depending on the point of view - technicality, the Competition Act does not contain stable transitional provisions which would determine competence for imposing penalties in relation to infringements which occurred before October 1 2010 (the statutory limitation period for such infringements is five years, which makes this issue still highly relevant).

Further, the agency rendered two important decisions in August 2014, establishing resale price maintenance in the food and retail sectors and imposing fines. The recent announcement confirms the agency's commitment to action in these sectors.

In its recent decision, the agency found that the purchase agreement entered into by Carlsberg Croatia and KTC2 contained provisions that fixed the minimum3 retail prices (ie, resale price maintenance clauses). The agency imposed total penalties of HRK600,000 (€78,226): Carlsberg Croatia was fined HRK500,000 (€65,189), while KTC was fined HRK100,000 (€13,037).

However, the agency stated that the fines were only symbolic, bearing in mind that:

the duration of the prohibited agreement had been relatively short; the undertakings had revised the challenged provisions on their own initiative before the agency initiated proceedings; it had not been established that the prohibited provisions significantly...