New episode in TV-market cartel: Dutch appeal court seeks clarity on the role of inter-brand competition in assessing vertical restrictions by object

In September 2021, the Dutch Authority for Consumers and Markets (“ACM”) imposed a €39,875,500 fine on Samsung Electronics Benelux B.V. for coordinating the sales prices of Samsung televisions with various retailers during a period of almost 6 years – see also this article. As expected at the time, Samsung appealed against this decision. Following the ruling of the Rotterdam District Court on 13 November 2023 in favour of the ACM, Samsung lodged an appeal with the Trade and Industry Appeals Tribunal (CBb), which issued an interim ruling on 3 February 2026. In summary, the CBb ruled that the ACM rightfully considered that there was an agreement and/or concerted practice and asks preliminary questions to the Court of Justice of the European Union (“CJEU”) regarding the role of inter-brand competition in case of intra-brand anticompetitive conduct. We discuss the CBb’s considerations in this interim ruling in more detail below.

”They're just like children... you have to keep educating them”

A quick recap of this case: between 9 January 2013 and 7 December 2018, Samsung allegedly regularly disciplined the online resale prices of seven retailers, in violation of Article 6 of the Dutch Competition Act and Article 101 TFEU. Samsung monitored the resale prices in the highly transparent market for televisions via price comparison sites and web crawlers. This allowed Samsung to identify which retailers initiated price reductions. In the event of deviations from the recommended retail price, Samsung employees contacted the retailers about their prices, acted upon complaints from some retailers about the pricing policies of others and internally discussed developments and actions, including their views after ‘advising’ a retailer: “They're just like children... you have to keep educating them”. 

Samsung’s behaviour qualifies as an ‘agreement’, even without coercive measures

Both the Rotterdam District Court and the CBb ruled that there was an agreement and/or concerted practice. The evidence of the conduct by Samsung showed a system in which the prices of retailers were monitored, explicit and repeated requests from Samsung to retailers to observe a minimum selling price, which were subsequently followed up by the retailers. 

An important element in the assessment was that coercive measures or financial incentives are not a requirement for vertical price coordination. The CBb referred to the Super Bock judgment (see also this article), in which the CJEU ruled that an agreement exists when the imposition of minimum prices and compliance with them express the corresponding will of the parties. The evidence showed that, although there were no coercive measures or financial incentives, Samsung did exert substantial pressure. And the CBb agrees with the District Court and the ACM that this conduct qualifies as by object restriction of intra-brand competition.

Importance of inter-brand competition in case of intra-brand harm?

Before the CBb can rule on the further merits of this case, it considers that the fundamental legal question is whether the examination of the economic and legal context in case of restrictions by object should also take into account the harm to inter-brand competition (competition between different brands) and, if so, which competition parameters such an examination should cover. In particular as the CBb assumes that the anticompetitive behaviour of Samsung in itself is sufficiently harmful for intra-brand competition due to the restriction on retailers to set their own prices and the retailers represented a large market share of the total sales of Samsung televisions in the Netherlands. 

The CBb noted that the case law of the CJEU, especially Visma and Super Bock, is unclear on this point. On the one hand, it cannot be automatically inferred from paragraph 78 of the Visma judgment (C-306/20) that inter-brand competition must always be taken into account when determining a vertical restriction of scope, although this judgment appears to relate to restrictions by effect. On the other hand, the later Super Bock judgment (C-211/22) does not refer to paragraph 78 of Visma nor to intra- or inter-brand competition in general in the paragraphs where the CJEU sets out the framework to assess restrictions by object. In this context, there is no decisive answer yet whether inter-brand competition should be considered in the case of vertical restriction by object, as the economic and legal context also includes the structure of the relevant market. 

To clarify whether or not the assessment of the economic and legal context, which also involves the structure of the relevant markets, should also include inter-brand competition, the CBb suspends any further decision and asks the CJEU to answer the following two preliminary questions:

“1) Must Article 101(1) TFEU be interpreted as meaning that, in order to establish the existence of a (vertical) restriction of scope, the examination of the economic and legal context must take into account not only whether an agreement or concerted practice between a supplier and retailers of the same brand is in itself sufficiently harmful to competition between those retailers (intra-brand competition), but also, in principle, whether that agreement or concerted practice is in itself sufficiently harmful to competition between different brands on the relevant market or markets (inter-brand competition)? 

2) If the answer to Question 1 is in the affirmative: (a) must it then be examined in all cases whether the agreement or concerted practice is in itself sufficiently harmful to inter-brand competition, or is this not necessary in specific types or categories of cases, for example hardcore restrictions, and (b) can this part of the examination of the economic and legal context then be limited to, for example, the market share of the brand and its development during the implementation of the agreement or concerted practice, or must it also extend to other competition parameters, depending on the circumstances of the case?” 

It remains to be seen how the Court of Justice will interpret the role of inter-brand competition in assessing vertical restrictions by object and what implications this will have for enforcement practice across the EU, also in the light of the latest 2022 VBER (read more about this in this article). In addition, the answers and insights from the CJEU in this case will be of importance for similar vertical conduct on the same market by LG, who received a nearly €8 million fine in 2023 (read more about this in this article). More is yet to come in a new episode about this cartel in the television market.

If you need more information or further guidance in this area, please contact Pauline Kuipers, Quirijn Mohr and Alba Dewit Pertegás.

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