Abuse of Economic Dependence - The Centre for European Policy ...

Abuse of Superior Bargaining Position/Economic Dependence 29
a) demanding retrospective rebates (so called ‘tapping a company for
rebates’);
b) refusal to supply undertakings with ‘must-stock’ items;
c) abusive and unjustified setting of sales prices by a franchisor;
d) agreements on an exclusive purchasing obligation within a franchising
system;
e) purchasing benefits are not passed on to the franchisee;
f) manufacturers requiring trading firms to comply with their provisions in
terms of quantities and turnovers on the type of resale; eg the setting of a
maximum threshold for internet sales without any objective justification;
g) deliberate non-disclosure of interface information in the software
sector by a car manufacturer; and
h) the use of pressure.
According to Schodermeier (1990), 36 the meaning of this section can be
highlighted by the practice of the German courts: in several cases they have
established the existence of dependence in the sense of section 26(2)(2),
although several undertakings competed vigorously in the market
concerned. 37 Section 26(2)(2) of the GWB therefore concentrated the analysis
on the specific relationships between powerful undertakings and their
customers and was less concerned about the structure of the market in
general. Thus, the analysis was focused less on the structural features of the
market (eg market shares) but rather on the ensuing harm to consumers as
a result of the adoption of anti-competitive conduct. 38
Rossignol 39 is one of the most eminent cases regarding the concept of
abuse of superior bargaining power. Rossignol which was a case of ‘single
36 Schodermeier focuses his analysis on a previous version of the German Act (section
26(2)(2)), which in substance addressed the same concept. The German cases referred herein
as examples of application under the previous version of the GWB are useful in substantiating
the importance of the existence of such legislation in order to capture anti-competitive conduct
of non-dominant firms.
37 BGH WuW/E 2125, 2127 Nordmende Stuttgart Court of Appeal WuW/E OLG 4047,
4049 Blaupunkt, Berlin Court of Appeal, AG 1987, 285, 291 COOP/Wandmaker.
38 Between 1997 and 2007 the Bundeskartellamt examined 39 cases of ‘abuse of superior
bargaining position’. Three of these cases ended with a decision that the conduct violated
antitrust rules:
—Praktiker Baumärkte/Franchisesystem (2006)
—RMS Radio/Aachener Lokalsender (2001)
—Metro MGE Einkaufs GmbH (1999)
Another five cases ended in a settlement with relief (without a formal decision):
—Sternjakob/Schulranzen (2006)
—Adam Opel AG/Software DMS (2006)
—Karstadt Quelle AG (2003).
See the German Response to ICN Kyoto-ASBP for analysis of some of these cases.
39 KZR 1/75 (Rossignol, November 20, 1975) WuW/E BGH 1391. See further: Chapter on
Germany in I Kokkoris (n 30).