Facts
Denner AG operates discount stores and sold bottled beer at a significantly lower price than the minimum retail price set by the Swiss Beer Brewers' Association. As a result, the breweries imposed a delivery embargo against Denner AG. Denner AG then obtained a provisional measure prohibiting the breweries from refusing deliveries to Denner AG as long as the retail price does not fall below the previous discount price.
The Federal Supreme Court had to assess whether the resale price maintenance by the breweries to ensure customer service was justified and whether the delivery embargo against Denner AG was therefore admissible.
Considerations
The Federal Supreme Court held that restrictions on competition to enforce resale price maintenance are generally admissible if they are justified by overriding legitimate interests and do not excessively impair the freedom of competition.
The Higher Court had justified the resale price maintenance with the need to ensure customer service through a nationwide network of retail outlets. The Federal Supreme Court considered this reasoning not entirely untenable, as the ability to conveniently purchase consumer goods near one's place of residence can be an important factor in the purchasing decision for many customers.
The Federal Supreme Court also considered not entirely untenable the assumption of the Higher Court that a collapse of prices in the beer market could jeopardize…