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30 A Gap in the Enforcement of Article 82 firm dependency’ (‘Spitzenstellungsabhängigkeit’), describing a situation in which, in order to be competitive, the small or medium-sized undertaking in question (in the case at hand a sports shop in Upper Bavaria) had to be supplied with the products of one particular supplier (in the case at hand, Rossignol skis) because these products were so important that they could not be replaced by the products of other suppliers. The sports shop and the German subsidiary of Rossignol had a longstanding business relationship. Rossignol announced that it would no longer supply the sports shop. The subsequent lawsuit between the sports shop and Rossignol concerned the legal question of whether Rossignol was obliged to supply the sports shop and whether it was liable for any damages incurred by the sports shop due to Rossignol’s refusal to supply. After conflicting decisions of the lower courts, the Bundesgerichtshof decided that Rossignol, as a ‘market strong’ undertaking within the meaning of section 20 paragraph 2 GWB (at the time: section 26 paragraph 2 GWB), was obliged to supply the sports shop and had to compensate it for damages. In the light of Rossignol’s market share of about 8 per cent, the Bundesgerichtshof denied—for lack of a market-dominating position—that Rossignol had a supply obligation according to section 20 paragraph 1 GWB. However, the Court upheld Rossignol’s obligation to supply the sports shop under section 20, paragraph 2 GWB. The Court identified the element of dependence as the crucial part of the wording of section 20 paragraph 2 GWB and stated that the obligations provided for by the provision had to be determined by construing whether the small or medium-sized enterprise wishing to be supplied had ‘sufficient and reasonable possibilities of resorting to other undertakings’. Whether this was the case had to be determined primarily by objective criteria and in particular by assessing the relevance of alternative possible sources of supply. In general terms, section 20 paragraph 2 GWB provides that undertakings are ‘market strong’ if and in so far as small or medium-sized enterprises depend on them for not having sufficient and reasonable possibilities of resorting to other undertakings. The German practice distinguishes between different sorts of dependency, the most important being the so-called ‘sortimentsbedingte Abhängigkeit’ which is present if a small or medium-sized undertaking is dependent on being supplied with the products of one or several suppliers in order to be competitive on the downstream market. The Designer-Polstermöbel case 40 represents another application of section 20 paragraph 2 GWB. This case involved a small or medium-sized undertaking (a dealer in upholstery furniture) which was dependent on the 40 KZR 28/98, Designer-Polstermöbel (9 May 2000) WuW/E DE-R 481.
Abuse of Superior Bargaining Position/Economic Dependence 31 products of a group of top manufacturers in its portfolio and was thus dependent on the group of manufacturers. As such, Designer-Polstermöbel is the leading case for an application concerning the ‘group dependency’ doctrine (‘Spitzengruppenabhängigkeit’). 41 In most cases, section 20 paragraph 2 GWB gives rise to the obligation of a manufacturer to supply certain undertakings of the demand side. However, the provision can also work to the advantage of suppliers. The Importarzneimittel case 42 is an example of such a situation. At the centre of the Bundesgerichtshof’s decision in the Importarzneimittel case is the finding that, where all undertakings at a certain trading level refuse to procure from the small or medium-sized undertaking, the latter may be considered to be dependent on each and every one of them and that ‘dependency’ within the meaning of the provision does not presuppose that the undertaking in question is not economically viable at all if not accepted as a purchaser or supplier by the market-strong undertaking(s), but that substantial competitive disadvantages vis-à-vis its competitors can suffice for a finding of dependency. 43 B. France Under French law, the abuse of a dominant position is not the only form of illegal abuse. 44 Article L. 420-2, paragraph 2 CC prohibits: The abuse by an undertaking or group of undertakings of the state of economic dependence in which a client or supplier undertaking finds itself in respect of the above shall also be prohibited when it is likely to affect the operation or structure of competition. These abuses may in particular consist of refusals to sell, linked sales or the discriminatory practices referred to in Article L.442-6. 45,46 41 Chapter on Germany in I Kokkoris (n 30). 42 KVR 10/94, Importarzneimittel (21 February 1995) WuW/E BGH 2990. 43 The analysis of this case is taken from the chapter on Germany in I Kokkoris (n 106). 44 The most recent decision that relates to the abuse of an economic dependence in France is Decision No.04-D-44 dated 15 September 2004. Abuse of economic dependence should not be confused with abuses in the relation to dependence, which is considered as a restrictive trade practice (contractual or tort perspective). 45 Act No 2001-420 of 15 May 2001, Article 66, Official Gazette of 16 May 2001. 46 Indeed, Article L 442-6 consists in a list of per se prohibited restrictive trade practices, which, until very recently, used to include unjustified discrimination. This particular prohibition has been lifted by the recent of ‘modernization of the economy’ voted in August 2008. Other prohibited practices include: disproportionate commercial obligations (formerly abuse of trade dependence), subjecting a partner to unjustified obligations or trading conditions, sudden severance (or threat of) of established business relations, subjecting a partner to manifestly unfair terms of payment, automatic debiting of suppliers by distributors, among others. Unlike the abuse of economic dependence featured in Article L. 420-2, these prohibitions are
Page 1 and 2: Introduction The Treaty of Rome 195
Page 3 and 4: Introduction 3 tion of this concept
Page 5 and 6: CHAPTER 1 Objectives of Article 82
Page 7 and 8: Objectives of Article 82 7 economic
Page 9 and 10: Objectives of Article 82 9 Director
Page 11 and 12: Objectives of Article 82 11 Virtual
Page 13 and 14: Objectives of Article 82 13 product
Page 15 and 16: CHAPTER 2 Concept of Dominance The
Page 17 and 18: Concept of Dominance 17 The stateme
Page 19 and 20: Concept of Dominance 19 criticisms
Page 21 and 22: CHAPTER 3 Abuse of Superior Bargain
Page 23 and 24: Abuse of Superior Bargaining Positi
Page 29: Abuse of Superior Bargaining Positi
Page 43 and 44: CHAPTER 4 The Gap in the Applicatio
Page 45 and 46: The Gap in the Application of Artic
Page 61 and 62: from the legal norm itself. Article
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Page 79 and 80: CHAPTER 5 How to Rectify the Gap Ge
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How to Rectify the Gap 81 As Faull
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How to Rectify the Gap 83 of the co
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How to Rectify the Gap 85 An argume
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How to Rectify the Gap 87 departing
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How to Rectify the Gap 89 mentioned
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How to Rectify the Gap 91 proportio
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How to Rectify the Gap 93 Depending
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How to Rectify the Gap 95 cases is
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98 A Gap in the Enforcement of Arti
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100 A Gap in the Enforcement of Art
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102 A Gap in the Enforcement of Art
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Annex 1 REPORT PREPARED BY THE ICN
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Annex 2 REPORT PREPARED BY THE ICN
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Annex 4 Appendix C of the ICN Kyoto
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112 Bibliography P Callol, P Pignat
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114 Bibliography Guidance on the Co
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116 Bibliography J Leibowitz, ‘Ta
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118 Bibliography I Roudard (1989),
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120 Bibliography The Distillers Com
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