Germany

Hartmann-Rüppel, Marco

doi:10.1007/978-3-319-46891-4_6

Marco Hartmann-Rüppel⁵

Part of the book series: LIDC Contributions on Antitrust Law, Intellectual Property and Unfair Competition ((LIDC))

656 Accesses

Abstract

Firstly, this contribution provides an overview of the legal framework concerning the abuse of a dominant market position in Germany with special attention to its historical development. It will secondly focus on providing a more detailed view of the German understanding of “abuse” and will thirdly show the enforcement practice. Finally, it will deal with some criticism on the German approach.

This is a preview of subscription content, log in via an institution to check access.

Access this chapter

Log in via an institution

Chapter: USD 29.95; Price excludes VAT (USA)

eBook: USD 189.00; Price excludes VAT (USA)

Softcover Book: USD 249.99; Price excludes VAT (USA)

Hardcover Book: USD 249.99; Price excludes VAT (USA)

Tax calculation will be finalised at checkout

Purchases are for personal use only

Institutional subscriptions

Notes

1.
“Gesetz gegen Wettbewerbsbeschränkungen”, aws.
2.
Section 18 ARC
1. (1)
  An undertaking is dominant where, as a supplier or purchaser of certain kinds of goods or commercial services on the relevant product and geographic market, it:
  
  1.
  has no competitors,
  
  2.
  is not exposed to any substantial competition, or
  
  3.
  has a paramount market position in relation to its competitors.
2. (2)
  The relevant geographic market within the meaning of this Act may be broader than the scope of application of this Act.
3. (3)
  When analysing the market position of an undertaking in relation to its competitors the following criteria have to be considered in particular:
  
  1.
  its market share,
  
  2.
  its financial power,
  
  3.
  its access to supplies or markets,
  
  4.
  its links with other undertakings,
  
  5.
  legal or factual barriers to market entry by other undertakings,
  
  6.
  actual or potential competition by undertakings established within or without the scope of application of this Act,
  
  7.
  its ability to shift its supply or demand to other goods or commercial services, as well as
  
  8.
  the ability of the opposite market side to resort to other undertakings.
4. (4)
  An undertaking is presumed to be dominant if it has a market share of at least 40 percent.
5. (5)
  Two or more undertakings are dominant insofar as
  
  1.
  no substantial competition exists between them with respect to certain kinds of goods or commercial services and
  
  2.
  they jointly satisfy the conditions of sentence 1.
6. (6)
  A number of undertakings is presumed to be dominant if it:
  
  1.
  consists of three or fewer undertakings reaching a combined market share of 50 percent, or
  
  2.
  consists of five or fewer undertakings reaching a combined market share of two thirds.
7. (7)
  The assumption of paragraph 6 can be rebutted if the undertakings demonstrate that
  
  1.
  the conditions of competition may be expected to maintain substantial competition between them, or
  
  2.
  that the number of undertakings has no paramount market position in relation to the remaining competitors.
Section 19 ARC
1. (1)
  The abusive exploitation of a dominant position by one or several undertakings is prohibited.
2. (2)
  An abuse exists in particular if a dominant undertaking as a supplier or purchaser of certain kinds of goods or commercial services:
  
  1.
  directly or indirectly hinders in an unfair manner another undertaking in business activities or directly or indirectly treats it differently from similar undertakings without any objective justification,
  
  2.
  demands payments or other business terms which differ from those which would very likely arise if effective competition existed; in this context, particularly the conduct of undertakings in comparable market where effective competition prevails shall be taken into account,
  
  3.
  demands less favourable payment or other business terms than the dominant undertaking itself demands from similar purchasers in comparable markets, unless there is an objective justification for such differentiation,
  
  4.
  refuses to allow another undertaking access to its own networks or other infrastructure facilities against adequate remuneration, provided that without such concurrent use the other undertaking is unable for legal or factual reasons to operate as a competitor of the dominant undertaking on the upstream or downstream market; this shall not apply if the dominant undertaking demonstrates that for operational or other reasons such concurrent use is impossible or cannot reasonably be expected,
  
  5.
  uses its market position to invite or to cause other undertakings in business activities to grant him advantages without any objective justification.
Section 20 ARC
1. (1)
  Section 19 paragraph 1 in conjunction with paragraph 2 no. 1 shall also apply to undertakings and associations of undertakings insofar as small or medium-sized enterprises as suppliers or purchasers of certain kinds of goods or commercial services depend on them in such a way that sufficient and reasonable possibilities of resorting to other undertakings do not exist (relative market power). A supplier of certain kind of goods or commercial services shall be presumed to depend on a purchaser within the meaning of sentence 1 if this purchaser regularly obtains from this supplier, in addition to discounts customary in the trade or other remuneration, special benefits which are not granted to similar purchasers.
2. (2)
  Section 19 paragraph 1 in conjunction with paragraph 2 no. 5 shall also apply to undertakings and associations of undertakings in relation to the undertakings which depend on them.
3. (3)
  Undertakings with a superior market power in relation to small and medium-sized competitors shall not use their market position directly or indirectly to hinder such competitors in an unfair manner. An unfair hindrance within the meaning of sentence 1 exists in particular if an undertaking
  
  1.
  offers food in the meaning of Section 2 paragraph 2 of the German Food and Feed Code below its cost price, or
  
  2.
  offers other goods or commercial services not merely occasionally below its cost price, or
  
  3.
  demands from small or medium-sized undertakings with which it competes on the downstream market in the distribution of goods or commercial services a price for the delivery of such goods and services which is higher than the price it itself offers on such market, unless there is, in each case, an objective justification for this. The offer of food below cost price is objectively justified if such offer is suitable to prevent the deterioration or the imminent unsaleability of the goods at the dealer’s premises by a timely sale, as well as in similarly severe cases. The donation of food to charity organisations for utilisation within the scope of their responsibilities shall not constitute an unfair hindrance.
4. (4)
  If on the basis of specific facts and in the light of general experience it appears that an undertaking has used its market power within the meaning of paragraph 3, it shall be incumbent upon this undertaking to disprove the appearance and to clarify such circumstances in its field of business on which legal action may be based, which cannot be clarified by the competitor concerned or by an association referred to in Section 33 paragraph 2, but which can be easily clarified, and may reasonably be expected to be clarified, by the undertaking against which action is taken.
5. (5)
  Trade and industry associations or professional organisations as well as quality mark associations shall not refuse to admit an undertaking if such refusal constitutes an objectively unjustified unequal treatment and would place the undertaking at an unfair competitive disadvantage.
3.
See Fuchs, In: Immenga, Mestmäcker (eds), Wettbewerbsrecht, Bd. 2 GWB/Teil 1, 5. Auflage, § 19 textnote 8.
4.
“Verordnung gegen den Mißbrauch wirtschaftlicher Machtstellungen” vom 2. November 1923, RGBl. I page 1067.
5.
“Gesetz über Errichtung von Zwangskartellen“, RGBl. I page 488.
6.
Bunte, In: Langen, Bunte (eds.), Kartellrecht, Bd. 1, Deutsches Kartellrecht, 12. Auflage, Einleitung zum GWB, textnote 1 et seq.
7.
BGBl. I 1957, pages 1081 et seq.
8.
BGBl. I 1965, pages 1363 et seq.
9.
BGBl. I 1973, pages 917 et seq.
10.
BGBl. I 1998, pages 2546 et seq.
11.
BGBl. I, No. 32, pages 1750 et seq.
12.
”Energiewirtschaftsgesetz”.
13.
”Postgesetz”.
14.
“Allgemeines Eisenbahngesetz”.
15.
“Gesetz gegen unlauteren Wettbewerb“.
16.
FCO, Decision of 9 February 2006, file no. B3-39/03.
17.
FCJ, Decision of 4 March 2008, file no. KVR 21/07.
18.
Amtsgerichte.
19.
Landgerichte.
20.
Cp. FCO, Die Wettbewerbsaufsicht des Bundeskartellamtes—Schwerpunkte 2007/2008, www.bundeskartellamt.de/SharedDocs/Publikation/DE/Taetigkeitsberichte/Bundeskartellamt%20-%20T%C3%A4tigkeitsbericht%202008_KURZ.pdf?__blob=publicationFile&v=2. Accessed 8 March 2016.
21.
Regional Court Berlin, Decision of 19 March 1975, file no. Kart. 26/74—Vitamin B 12, WuW/E OLG 1599, 1607.
22.
Regional Court Berlin, Decision of 18 February 1969, file no. Kart. V 34/67—Handpreisauszeichner, WuW/E OLG 995, 1000.
23.
OECD, Wirtschaftsberichte Deutschland, V. 2006/08, 123.
24.
“Monopolkommission”.

Author information

Authors and Affiliations

Taylor Wessing, Hamburg, Germany
Marco Hartmann-Rüppel

Authors

Marco Hartmann-Rüppel
View author publications
You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Marco Hartmann-Rüppel .

Editor information

Editors and Affiliations

Këllezi Legal, Geneva, Switzerland
Pranvera Këllezi
Addleshaw Goddard LLP, London, United Kingdom
Bruce Kilpatrick
Kobel Avocat Attorney-at-law, Geneva, Switzerland
Pierre Kobel

Rights and permissions

Reprints and permissions

Copyright information

About this chapter

Cite this chapter

Hartmann-Rüppel, M. (2017). Germany. In: Këllezi, P., Kilpatrick, B., Kobel, P. (eds) Abuse of Dominant Position and Globalization & Protection and Disclosure of Trade Secrets and Know-How. LIDC Contributions on Antitrust Law, Intellectual Property and Unfair Competition. Springer, Cham. https://doi.org/10.1007/978-3-319-46891-4_6

Download citation

DOI: https://doi.org/10.1007/978-3-319-46891-4_6
Published: 06 May 2017
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-46890-7
Online ISBN: 978-3-319-46891-4
eBook Packages: Law and CriminologyLaw and Criminology (R0)

Publish with us

Policies and ethics