General market obstruction

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A general market obstruction (also: general market disruption ) exists under fair competition law if “ competitive behavior that is not unfair from the outset, but nevertheless competitively questionable, alone or in connection with the similar measures to be expected by competitors, creates the serious risk that the Competition is restricted to a considerable extent ". This leads to a market structure control over the UWG, which actually falls to the cartel law .

history

The Reichsgericht developed the principles of general market disruption as a reaction to cases that could lead to market failure (cf. Benrath gas station case ). However, this happened before comprehensive antitrust law existed in Germany and Europe. In the course of the 2004 UWG reform, the case group was not codified, so it is now subject to the general clause of Section 3 (1) UWG.

Legal position

The case group faces considerable criticism. The most important argument for this is that the case group, apart from its strangeness in fair trading law, has practically no area of ​​application today. An exception is the free distribution of press services. The press is indispensable for the formation of public opinion, so that the jurisprudence here assumed that the existing market structures were particularly in need of protection. It was feared that the free distribution of newspapers with editorial content could drive publishers out of the market. Here too, however, the case law has relaxed.

Market disruption

Of market disruption ( English market disruption ) is called in contract law , if a market due to unforeseen events (exogenous: power failure , natural disasters , terrorist attack ; endogenous: supply or demand shocks , failure of human or machine ) is inoperable and essentially no longer fulfill his duties can. This disruption occurs as a market disruption clause in particular in the financial sector when either refinancing or free interest rate formation becomes impossible on the financial markets ( money market , capital market , stock exchange ) . According to section 11.2 (b) German LMA version of the treaty is a disturbance of the international credit transactions in front if the agreed reference rate can not be determined or the funding costs of the credit institution exceed the reference rate. Its legal validity is doubtful in German law according to Section 307, Paragraph 1, Sentence 2 of the German Civil Code ( BGB) , because an interest rate adjustment clause is linked to a conditional interest rate adjustment clause and it is not possible for the borrower to calculate in advance how the abstract, market-dependent and the concrete, cost-related refinancing risk of the lender will be behave towards each other.

Individual evidence

  1. ^ BGH WRP 2004, 746, 747 - Sunday newspaper ; BGH GRUR 2004, 602, 603 - 20 minutes Cologne ; Köhler / Bornkamm, UWG. 30th edition, § 4 marginal no. 12.3.
  2. ^ Harte-Bavendamm / Henning-Bodewig, UWG. 2 ed. § 4 K marginal no. 245
  3. ↑ See BT-Drucks 15/1487 (PDF file; 612 kB) p 19.
  4. ↑ Emmerich, Unfair Competition. 9 ed. § 19 marginal no. 3.
  5. ↑ BGH GRUR 2004, 602, 603 - 20 minutes Cologne
  6. ↑ Stefan Grundmann, in: Großkommentar HGB , Bank Contract Law 2: Commercial Banking: Payment and Credit Business , 2015, Rn. 357
  7. ↑ Stefan Grundmann, in: Großkommentar HGB , Bank Contract Law 2: Commercial Banking: Payment and Credit Business , 2015, Rn. 357