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Case:
BGH NJW 1976, 801
Anti-Trust Senate
Date:
20 November 1975
Note:
Translated German Cases and Materials under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Translated by:
Mrs Irene Snook
Copyright:
Professor B.S. Markesinis

Within Germany, the plaintiff is sole distributor of Rossignol skis. The defendant manages a leading specialist sports shop in Upper Bavaria. The parties had long-standing business connections. In the season 1972/73, the sale of Rossignol skis contributed DM 100,000 to the defendant's overall turnover (skis) of DM 3 million. On 4 October 1973, the defendant ordered from the plaintiff 478 pairs of Rossignol skis. The plaintiff refused to accept the offer and informed the defendant that it would not deliver skis even after the current regime of resale price maintenance had fallen away.

The Landgericht rejected the action for a declaratory judgment stating that the plaintiff was not bound to accept the offer of 4 October 1973 or future orders from the defendant. After a change in plea, the Oberlandesgericht held that the defendant has no claim resulting from the refusal of his order of 4 October 1973 and that the plaintiff is not bound to accept future orders from the defendant for the supply of skis. The further appeal is successful in its main points.

Reasons

A. The claim for a declaratory judgment concerns the order of 4 October 1973. According to para. 35 I 1 of the Cartel Act (GWB), the plaintiff must compensate the defendant for losses incurred, insofar as his refusal to supply the defendant according to his order of 4 October 1973 intentionally or negligently infringes legal provisions intended to protect the defendant. para. 26 II GWB prohibits an enterprise listed therein from unduly impeding another enterprise in business dealings normally open to similar enterprises or from treating that enterprise differently from like enterprises without sufficient reason. This provision intends to protect single enterprises (BGHZ 36, 91, 100 = NJW 1962, 196 - Gummistrümpfe). A culpable infringement of this provision gives rise to a claim for damages under para. 35 I 1 GWB.

I. 1. para. 26 II 1 GWB subjects enterprises operating price maintenance policies to a prohibition of discrimination.(.....)

2. The Second Amendment Act extended the prohibition of discrimination expressed in para. 26 II 1 GWB to enterprises and associations of enterprises insofar as their suppliers or customers of certain kinds of goods or commercial services depend on them to such an extent that they have insufficient and unacceptable means of switching to other enterprises. In order for this provision to apply, it is decisive to interpret what exactly is meant by "insufficient and unacceptable means of switching to other enterprises" and where actual dependency occurs as outlined above (......)

b) An interpretation of the intentions pursued by para. 26 II 2 GWB leads to the following result:

aa) By extending the range of addressees who are prohibited from discriminating, over and above the circle of enterprises listed in para. 26 II 1 GWB, restrictions of unhindered competition effected by other kinds of commercially strong enterprises were to be prevented, whenever such disruptions were caused by an abuse of economic power. Even where not in a market-dominating position, an enterprise can hold such a strong position in the market that it can disrupt the markets in a manner which para. 26 II GGWB intended to prevent and to combat (BGHZ 49, 90, 96 = NJW 1968, 400 - Jägermeister). In respect of enterprises operating price maintenance agreements, the legislator globally assumed such dangers to exist and therefore included them in the prohibition to discriminate. By the newly-added second sentence , additional enterprises are included which, although not market-dominating, hold such strong economic position in relation to other enterprises that their measures affect enterprises which depend on them in the same way as if they were operated by market-dominating enterprises. This additional group of enterprises is therefore subject to the same restrictions as regards contractual freedom..(.......)

cc) The dependency of one enterprise on another must be so strong that there are only insufficient or unacceptable other means of switching to third enterprises. Whether or not sufficient possibilities exist as envisaged by this provision is to be judged according to objective criteria, i.e. the possibilities provided by the relevant market for switching from the goods of the discriminating enterprise to those of other companies. Not every possible switch is "sufficient" in the sense of s. 26 II 2 GWB. Where an enterprise as supplier or customer of certain goods has very few competitors or where, in comparison to competitors, it holds a much stronger market position, it is market-domineering (para. 22 I No. 1, 2 GWB) and thus already falls under the prohibition to discriminate as set out in para. 26 II 1 GWB. Thus, para. 26 II 2 GWB comes into play only insofar as an enterprise is exposed to considerable competition and does not hold a market-dominating position. The existence of considerable competition between suppliers is not the same as having sufficient possibilities to switch from an enterprise which discriminates between customers to another enterprise. The number of enterprises dealing in similar goods is likewise not decisive, at least not on its own. The overall decisive factor is the commercial value and market prestige of the goods in question. This factor determines whether or not sufficient possibilities exist to switch to other enterprises. Apart from their price, the actual value of particular goods is thus determined by their quality and the producer's adverti-sing activities. These criteria significantly influence demand. In particular, it is advertising which can give branded goods a specific market position with the result that the customer feels unable to substitute the goods with other goods..(.....)