resale price maintenance

Resale Price Maintenance – Korg Fined

On 9 July 2020, the Competition and Markets Authority (CMA) published the full text of its infringement decision finding that Korg (UK) Limited had breached the Chapter I prohibition of the Competition Act 1998 and Article 101 of the Treaty on the Functioning of the European Union by engaging in resale price maintenance in relation to the online retail prices of Korg's synthesizers and hi-tech equipment.

Background

In April 2018, the CMA launched an investigation related to alleged anti-competitive agreements and/or concerted practices in relation to the distribution of musical instruments and equipment by Korg (UK) Limited (Korg UK). On 24 March 2020, the CMA issued a statement of objections alleging that Korg UK had breached Article 101 of the TFEU and the Chapter I prohibition by restricting retailer freedom to discount the online retail prices of synthesizers and hi-tech equipment supplied by Korg UK, in other words, that Korg were guilty of resale price maintenance.

Korg UK subsequently reached a settlement agreement with the CMA and, on 29 June 2020, the CMA announced that it had issued an infringement decision, fining Korg UK £1.5 million for engaging in resale price maintenance designed to restrict retailer freedom to set prices online by requiring their musical instruments to be sold at or above a minimum price. The CMA has now published the full text of the infringement decision.

The facts

Korg UK is active in the distribution of musical instruments and music-making equipment (MI) including electronic MI in the UK and Republic of Ireland. The CMA's investigation was limited to the supply of Korg synthesizers and hi-tech equipment (including DJ equipment, electronic percussion, stage pianos, and controllers) (Relevant Products).

The CMA concluded that during the relevant period (9 June 2015 to 17 April 2018), Korg UK operated and enforced a wide-ranging pricing policy, the purpose of which was to ensure that MI Resellers would not advertise or sell the Relevant Products online below a certain minimum price specified by Korg UK from time to time, for example in Korg UK’s price lists. The CMA found that the nature of the Korg Pricing Policy was such that Korg UK rarely needed to contact MI Resellers about it (in writing or otherwise), when MI Resellers were complying with it because the Minimum Price was, in general, clearly displayed on Korg’s UK’s price lists relating to the relevant products.

This generally limited the need for verbal and written communications concerning the Korg Pricing Policy, and therefore limited the amount of written records related to the Korg Pricing Policy. Despite this, the CMA obtained evidence which, in the CMA’s view, demonstrated the existence of the Korg Pricing Policy. Relevant contemporaneous documentary evidence was corroborated by certain witness evidence describing verbal and/or written communications that took place between Korg UK and its MI Resellers during the relevant period.

Resale price maintenance – Korg evidence

The commercial aims, content and communication and scope and duration

Korg UK’s commercial aims for introducing the Korg Pricing Policy were as follows:

  • It was designed to enable Korg UK’s MI Resellers to achieve attractive margins through the maintenance of high and stable pricing, so increasing the attractiveness of the Korg brand and encouraging MI Resellers to stock and sell the Relevant Products (and the Korg brand more generally).
  • In doing so, it aimed to help Korg UK secure, maintain and/or improve its UK market position in the relevant products relative to its competitors, in particular, by maintaining the brand value of the relevant products.

Resale price maintenance – Korg’s monitoring and enforcement

The evidence showed that Korg UK sought to monitor and enforce the Korg Pricing Policy by contacting MI Resellers in advance of Korg UK issuing a new price list or immediately after issue to ensure early compliance with the Korg Pricing Policy.

Korg UK’s awareness of competition law and potential illegality, and culture of concealment

The evidence shows that Korg UK staff were very familiar with competition law and appeared to know what conduct would constitute a breach of it. Korg had introduced a compliance code in 2015 and senior employees took an active role in giving competition compliance training as part of the induction for new Korg UK staff. The CMA further concluded that “Korg UK staff operated under a culture of concealment and tried to avoid generating an evidence trail of potentially incriminating written records.”

CMA’s legal assessment of resale price maintenance

The decision sets out CMA’s legal assessment of Korg UK’s agreement and/or concerted practice with Reseller 1, one of its MI Resellers, that Reseller 1 would not advertise or sell online synthesizers or hi-tech equipment supplied to it by Korg UK below a certain Minimum Price specified by Korg UK from time to time, in accordance with the Korg Pricing Policy.

The CMA had reasonable grounds for suspecting that more than 20 MI Resellers of the relevant producers were subject to the Korg Pricing Policy, and that MI Resellers generally complied with Korg UK’s requests to adhere to the Minimum Price.

The CMA, therefore, concluded that throughout the relevant period:

  • Reseller 1 generally complied with the Korg Pricing Policy, due to a credible fear of sanctions for non-compliance.
  • Korg UK monitored Reseller 1’s pricing and requested Reseller 1 on numerous occasions to follow the Korg Pricing Policy with regard to Reseller 1’s advertising and selling online of the Relevant Products (this tended to happen when Korg UK issued a new price list or when Reseller 1 had been caught matching another MI Reseller’s lower prices, at least temporarily).
  • On numerous occasions Reseller 1 increased its pricing (albeit not always immediately) to at least the Minimum Price, on Korg UK’s request.
  • On numerous occasions Reseller 1 reported to Korg UK other MI Resellers advertising or selling the Relevant Products online at prices below the Minimum Price.

Decision to impose penalties

The CMA concludes that there is strong evidence that Korg UK must have been aware, or could not have been unaware, that its conduct had the object or would have the effect of restricting competition. In particular, there was evidence that staff were aware that resale price maintenance was illegal and that there was a culture of concealment to hide evidence. The CMA therefore found that Korg UK committed resale price maintenance intentionally.

Case study

The CMA has published a case study explaining the facts of this case. It notes that there are a number of lessons that businesses can learn from this case, including an understanding that:

  • It is illegal for a supplier to interfere with a reseller’s ability to independently set their own price.
  • The CMA has sophisticated means of gathering evidence and uncovering evidence even where the companies have tried to hide their actions by deleting communications.
  • If you are ever asked not to put something down in writing, you should be suspicious as it could relate to something illegal. If so, you should seek legal advice and seriously consider whether to report the matter to the CMA.
  • Directors and senior staff have a special responsibility to be well informed on competition law and make sure their companies are behaving legally and ethically.
  • Attending compliance training alone is not sufficient to be compliant – you must actively comply with the law.
  • As a reseller you can also be investigated for breaking the law if you are found to have co-operated with a minimum pricing policy. If a supplier tries to make you comply with a minimum pricing policy, you should refuse and point them to our guidance. The CMA would also urge you to report them. Resellers may also face enforcement action such as fines if they have gone along with the supplier’s resale price policy.

EM Law help a wide range of clients with compliance and structuring around their operations. Please contact us if you have any questions on the issues raised in this article.


Climate Change Some Legal Perspective

Climate Change - Some Legal Perspective

The extent to which law will dictate the impact of climate change is yet to be seen. As regulation increases businesses need to be aware of their new obligations. Additionally,  the wider economic implications of consumer perspective, shareholder leverage and affected supply chains means that climate change has the potential to completely change the face and operations of a company. Below is a broad outline of some of the risks and regulations in the UK.

Financial stability risks

The former Governor of the Bank of England, Mark Carney, identified three key areas of risk to financial stability from climate change:

  • Physical risk: risks from the direct impacts of climate change, including impacts on insurance liabilities and the value of financial assets that arise from climate- and weather-related events, such as floods and storms that damage property or disrupt trade.
  • Liability risk: the impacts that could arise in the future if parties who have suffered loss or damage from the effects of climate change seek compensation from those they hold responsible. These types of claims are likely to impact most severely on carbon extractors and emitters, and their insurers.
  • Transition risk: the financial risks that could result from the process of adjustment towards a lower-carbon economy. Sudden or disorderly changes in policy, technology and physical risks could prompt a reassessment of the value of a large range of assets as costs and opportunities become apparent.

Increased recognition

Recognition of the severity of the risks from climate change has grown exponentially over recent years. For the first time, the World Economic Forum's Global Risk Report 2020 identified climate change risk and biodiversity loss as among the most important global risks. Price Waterhouse Cooper's 23rd Annual Global CEO Survey, ‘Navigating the rising tide of uncertainty, found that two thirds of CEOs identified climate change as a risk to their business, while many also recognised the opportunities.

Climate change impact on organisations

Climate change can impact companies and other types of business in several ways, including:

  • Physical impacts: Companies' operations may be affected by extreme weather events (such as droughts, flooding, storms or fires), particularly those with operations or supply chains in vulnerable areas of the UK or other countries. This can also lead to increased insurance premiums or difficulty in obtaining insurance, for example for businesses located in high risk flood areas.
  • Litigation risk: Climate change litigation is increasingly being used in some jurisdictions (notably, the US) to influence government action and corporate and investment decisions relating to climate change, and to seek compensation for losses already sustained and future adaptation costs.
  • Climate change legislation: may limit the ability of companies to operate, or affect their growth strategies.
  • Project and development risk: It will be harder for some types of project, developments and activities to obtain the necessary permits and consents. For example, the successful climate change judicial review challenge to the Airports National Policy Statement (NPS) for Heathrow expansion impacts on many businesses involved in the project.
  • Resource risk: It may be harder or more expensive for companies to secure resources, such as energy and water.
  • Market risk: Businesses may be at a competitive disadvantage if they fail to recognise market trends driven by climate change. Consumers' understanding of green products and services is increasing and their demands becoming more sophisticated.
  • Technology risk: Low-carbon technologies will disrupt the economy and reduce demand for some types of product.
  • Supply chains and public sector procurement: Companies are putting increasing pressure on their suppliers to reduce their carbon footprints, in order to be able to show the extent of their own commitment to reducing carbon emissions. Companies will wish to ensure that their chain is resilient to climate change risks. Public sector organisations are also subject to increasing green procurement obligations. This could put companies at a disadvantage when bidding for contracts.
  • Reputational risk: Companies are increasingly expected to report on their climate change risks, set carbon reduction targets and mitigate their climate change impacts. Failure to engage visibly with decarbonisation may impact on a company's reputation and brand.
  • The race to net zero: An increasing number of companies (including global corporations) have set net zero targets over recent years, putting pressure on their peers to do the same. For information on organisations that have made net zero commitments, see UN: Business Ambition for 1.5°C - Our Only Future (businesses that have committed to set science-based targets aligned with limiting global temperature rise to 1.5°C) and UN: Net-Zero Asset Owner Alliance (institutional investors who have committed to transition their investment portfolios to net zero by 2050).
  • Investor pressure: Insurers, lenders, shareholders and other investors are putting increasing pressure on companies to provide information about climate change so that they can assess the financial impacts on their investments.
  • Activist risk: Companies that are involved in greenhouse gas (GHG) intensive industries (like power plants and airports) are at risk of organised protests, which might result in financial loss. Increasingly companies are also seeing action by shareholder activists. For example, Climate Action 100+ is an investor initiative that calls on the world’s largest corporate greenhouse gas (GHG) emitters to take necessary action on climate change, and Follow This is a group of shareholders in oil and gas companies that organises support for oil and gas companies to commit to the goal of the Paris Climate Agreement to limit global warming to well below 2 degrees C.
  • Business opportunities: Climate change may provide new business opportunities (for example, in the clean tech and renewable energy sectors). Government financial incentives may also provide opportunities in new sectors (for example, feed-in tariffs to support renewables).
  • Employee pressure: Employees are increasingly calling on employers to recognise the importance of climate change and commit to reducing emissions. Addressing these concerns and engaging with employees is important for recruitment and retention, and can also have reputational impacts (for example, media coverage of how employers are dealing with the global climate strikes in September 2019).
  • Stranded assets: Achieving climate change targets, in particular limiting climate change to less than two degrees, will require a large proportion of existing fossil fuel reserves to remain unused. The value of these assets might not be fully reflected in the value of companies that own the assets or that extract or distribute fossil fuels, or energy intensive industries. Pricing in this risk could result in a sudden drop in value. Assets could become stranded by legislation (for example, the phase out of coal-fired power stations in the UK), an increased demand for renewable energy, or legal action.
  • Competition law: Competition issues may arise where businesses are seeking to engage with peers, suppliers or customers on climate change, or where businesses exclude certain suppliers based on their climate change performance or other sustainability criteria.

Climate change legislation: framework and government targets

Although the public debate about climate change continues, the scientific consensus is clear that man-made climate change is real.

In response, the international community has developed an evolving framework of climate change legislation, through the United Nations Framework Convention on Climate Change (UNFCCC), the Kyoto Protocol and the Paris Agreement.

The EU and UK have adopted ambitious targets and legislation to reduce GHG emissions, improve energy efficiency and increase renewable energy. In particular, the EU adopted a framework for climate change and energy policy with targets for 2030 and the UK adopted the Climate Change Act 2008, and, in 2019, set itself a statutory net zero carbon target for 2050.

Climate change legislation in England and Wales: summary of key areas

Some climate change legislation impacts only on certain, primarily high-energy businesses. However, increasingly, climate change legislation has a far wider application. The key areas are:

  • Climate Change Act 2008.The Climate Change Act 2008 provides the overall framework for the UK's climate change policy and legislation. It imposes a legally-binding duty on the government to reduce the UK's GHG emissions by 100% by 2050, through a series of "carbon budgets", thus giving businesses (including investors) a strong signal of the government's overall trajectory.
  • Carbon reporting.Medium-sized and large quoted companies have been required to report on their GHG emissions in their annual company reports for some years. The streamlined energy and carbon reporting(SECR) regime imposes new and additional reporting requirements on GHG emissions, energy consumption and energy efficiency action by quoted companies, large unquoted companies and large limited liability partnerships (LLPs) in respect of financial years beginning on or after 1 April 2019. SECR extends carbon reporting requirements to many companies that were not required to report before.
  • EU Emissions Trading System (EU ETS).The EU ETS is a mandatory emissions trading scheme for installations in certain energy-intensive industries across the EU, including manufacturing facilities, oil refineries and power stations. The government allocates allowances to installations within the EU ETS, allowing them to emit a certain amount of carbon dioxide each year. Since 2012, a significant level of allowances has been auctioned instead of allocated for free. At the end of each year, the amount of carbon dioxide emitted by an installation must be less than or equal to the amount of allowances that it holds. Companies can trade allowances with each other to achieve compliance. The UK government is considering various carbon pricing options to replace the UK's participation in the EU ETS at the end of the transition period.
  • Carbon emissions tax.Following the UK's departure from the EU on 31 January 2020, the government is considering introducing a carbon emissions tax as part of the UK's future carbon pricing policy after the end of the transition period, depending on the terms of the future relationship between the UK and EU. A carbon emissions tax is a possible option in the event that the government cannot agree its preferred option of a UK ETS linked to the EU ETS. (The alternative is a stand-alone UK ETS).
  • Climate change levy (CCL).The CCL is a carbon tax that adds around 15% to the energy bills of businesses and public sector organisations. It is levied on non-domestic consumers of certain energy supplies (for example electricity, gas, solid fuel and liquefied gas). The rate of CCL was increased from April 2019 to reflect the abolition of the CRC Energy Efficiency scheme. Energy-intensive business users can enter into voluntary climate change agreements (CCAs) to receive a discount from the main CCL rate. CCAs commit energy-intensive installations and facilities to targets for improving their energy efficiency or reducing carbon emissions, in return for receiving the reduced CCL rate.
  • Energy Savings Opportunity Scheme (ESOS). ESOS requires larger companies and non-public sector organisations in the UK to carry out mandatory energy saving assessments. It requires participants to calculate their total energy consumption, carry out energy audits and identify where energy savings can be made.
  • Energy efficiency.The government is also seeking to improve the energy efficiency of buildings and products and appliances, including requirements for eco-design and energy labelling, and voluntary initiatives by manufacturers and retailers.

Climate change in contracts

In February 2020, The Chancery Lane Project (TCLP) published the first edition of its Climate Contract Playbook and Green Papers of Model Laws, based on pro bono drafting by more than 120 legal professionals at its November 2019 climate change hackathon. The Project aimed to bring legal professionals together to collaborate and rewrite contracts and laws in order to support communities and businesses in fighting climate change and achieving net zero carbon emissions.

New standards

An increasing number of companies (including global corporations) have set net zero targets over recent years, putting pressure on their peers to do the same. The World Economic Forum (WEF) called for all companies attending the 2020 Davos meeting to set a target of net zero carbon emissions by 2050. The WEF also provided guidance on setting a net zero target and recommended that companies also set an interim 2030 goal and disclose the climate risks facing their business.

Regardless of the size of the business or organisation concerned, some form of planning or awareness of the impact of climate change is crucial to help regulation run smoothly and in preparation for the consequences of an increasingly volatile situation.

If you have any questions on the above please contact us.