Facts
Denner AG operates discount food stores in Switzerland and wanted to sell draft beer in 6 dl returnable bottles at a price of 50 cents. However, the Swiss breweries, which are members of the Swiss Brewers' Association, refused to supply draft beer to Denner AG as it did not want to comply with the binding minimum retail price of 70 cents.
Denner AG then sued the Swiss Brewers' Association and individual breweries. The Commercial Court of the Canton of Zurich partially upheld the claim and found that the price discrimination against Denner AG was unlawful. However, the Commercial Court considered the supply embargo on draft beer in 6 dl returnable bottles to be permissible, as it was justified by overriding legitimate interests.
Denner AG appealed against this judgment to the Federal Supreme Court.
Considerations
The Federal Supreme Court dismissed the appeal and confirmed the judgment of the Commercial Court. It stated that the supply embargo constituted a measure within the meaning of Art. 4 para. 1 of the Cartel Act, which significantly impeded Denner AG in competition. However, this restriction of competition was permissible under Art. 5 para. 2 lit. e of the Cartel Act, as the resale price maintenance was necessary to ensure customer service.
The Federal Supreme Court found that the abolition of resale price maintenance would be expected to lead to a price war at the retail level, which would result in a decline in beer sales outlets and thus impair customer service. Therefore, the resale price maintenance was justified in order to maintain a dense network of…