In a press release issued on 22 January 2015, the German Federal Cartel Office ("FCO") announced that it has issued a decision imposing a fine of € 225,000 on the producer and distributor of home carbonation systems, SodaStream, for having abused its dominant position on the market for the refilling of gas cylinders for carbonated drinks machines by giving customers the impression that only SodaStream is authorised to refill their gas cylinders.
In 2006, the FCO had previously found that SodaStream (then known as Soda Club) had abused its dominant position on the German market for the refilling of gas cylinders (see VBB on Competition Law, Volume 2006, No. 3, available at www.vbb.com). At the time, rather than selling gas cylinders, Soda Club rented the majority of its gas cylinders to retailers and consumers. The FCO found that the ownership it thereby retained was utilised to prohibit companies outside of its distribution network from refilling the gas cylinders. As a result, the FCO issued an order on 9 February 2006 instructing Soda Club to permit companies outside its distribution network to refill cylinders and to attach a label to the cylinders that informs customers of the fact that cylinders may be refilled by third parties.
Following appeals lodged by SodaStream, the FCO's decision of 2006 was upheld by the Higher Regional Court of Düsseldorf in 2007 (see VBB on Competition Law, Volume 2007, No.7, available at www.vbb.com) and by the German Federal Court of Justice in 2008 (see VBB on Competition Law, Volume 2008, No.3, available at www.vbb.com), which clarified that the said label had to be attached to the cylinders for a time period of three years.
It follows from the January 2015 press release that, after the 2008 ruling of the Federal Court of Justice, SodaStream made the necessary changes to its distribution system. However, through warnings, safety instructions and exclusions of guarantee, SodaStream gave customers and business partners the impression that it alone was authorised to refill the gas cylinders. By way of example, SodaStream indicated on the shrink film of its gas cylinders and on the packaging of reserve cylinders that the cylinders should be refilled exclusively by SodaStream and that unauthorised refilling by third parties may be risky and unlawful.
The FCO found that by having engaged in the above practices SodaStream abused its dominant position on the market for the refilling of gas cylinders used in carbonated drinks machines and acted contrary to the 2006 order issued by the FCO. Following the FCO's findings, SodaStream has committed to end the practices that were found abusive and to continue attaching, during the next three years, a label to its gas cylinders that emphasises that such cylinders can be refilled by third parties.
The FCO's decision is not final. SodaStream could file an appeal to the Higher Regional Court of Düsseldorf.
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