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

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