Coupling agreement

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Coupling of the contract (or tying ; English tying arrangement ) is a contract in which a Party shall, in addition to the main performance , certain other practical or commercially unrelated goods (or other services ) to decrease .

General

In a normal sales contract , only a certain item is the object of purchase, the purchase price relates exclusively to this object of purchase. In tied transactions, the term tying refers to the combination of a main contractual service with one or more ancillary services . In the case of coupling agreements, a buyer must undertake to purchase certain bundles of goods and / or services as a single package. The object of purchase ( coupling product) actually desired by the buyer is linked to at least one further product or service that is neither factually nor commercially part of the coupling product ( coupled product ; Art. 102 (2d ) TFEU ). The transparency between the purchase price and the bundle of purchase objects is reduced or is completely lost.

Legal issues

A combined offer is anti- competitive if there is a risk that the consumer will be deceived or otherwise insufficiently informed about the market value of the actual offer , namely the value of the additional service offered. In this judgment, the BGH pointed out that it is considered to be anti-competitive if the coupling offer is so attractive that, as an exception, the rationality of the purchase decision takes a back seat to the consumer .

However, as long as tying agreements do not completely take a back seat to the rationality of the demand decision of a reasonable average consumer, they are effective. Coupling a ski package tour with ski equipment, an electricity supply contract for two years with a television set or a magazine with sunglasses is permitted. If the consumer is promised discounts such as gifts in particular for the purchase of goods or the use of a service , this is not necessarily an exaggerated attraction even if the main service and gift do not represent a functionally uniform offer from the consumer's point of view. Rather, the entrepreneur is always allowed to combine different offers with one another; this also applies if some of the goods or services linked in this way are delivered without separate payment .

In general, there is an obligation for tied offers that prices are to be advertised uniformly. In particular, it is anti-competitive to emphasize the promise of free partial services or the favorable price of a partial service in advertising without at the same time clearly identifying and clearly indicating the fee that is required for the other part of the coupling offer ( § 1 PAngV a . F.). Additional unfairness criteria such as insufficient information or misleading are also anti-competitive . The necessary “compulsion” for the buyer to purchase the additional service can also be conveyed technically, for example by the controlling company designing the co-product in such a way that coupled products from other manufacturers can only be used with considerable technical effort. Companies take advantage of this with the lock-in effect . The coupling of a property purchase contract with an architect contract is ineffective according to Art. 10 § 3 of the Act regulating housing brokerage .

Tied transactions always violate the prohibition of Section 1 GWB and Art. 101 Para. 1e TFEU . Pursuant to the Vertical Block Exemptions ( Regulation (EU) No. 330/2010 of April 20, 2010 on the application of Article 101 (3) TFEU to groups of vertical agreements and concerted practices ), couplings in the vertical relationship can be exempt from this prohibition if the market share of the supplier in both the coupling product as amounts even when coupled product to a maximum of 30 per cent (Art. 3, para. 1 vertical Block Exemption). In addition, a possible abuse of a dominant position ( Section 19 (1) and (2) No. 2 GWB) as well as a possible violation of the prohibition of undue hindrance to other companies by market-dominant or market-strong providers (Section 19 (1) and (2) No. . 1, Section 20 (1) GWB) are available. Tied transactions are assigned to Section 19 (4) No. 1 GWB.

The BGB raises the tying in the lending business of banking for legal concept . The lender may according to § 492a BGB the conclusion of real estate advertisements in consumer loan contract does not make it a condition that the borrower or a third party other financial products or financial services will acquire; inadmissible tied transactions are void . According to Section 492b of the German Civil Code ( BGB), the permitted tied transactions include the opening of a payment or savings account for debt servicing or as security for the consumer real estate loan contract . There is a ban on linking basic accounts in accordance with Section 32 (2) ZKG , so that, as a rule, only the legally permissible payment services may be offered.

In some cases, tied transactions are not otherwise conceivable such as B. Assisted living as a rental agreement with a service agreement .

Legal consequences

If tied transactions are subject to a ban on tying , they are null and void according to § 134 BGB, § 138 BGB and possibly also § 59 VwVfG .

economic aspects

In economics , the representatives of the Chicago School argued that a monopoly can only siphon off the monopoly profit of a market and that the undertaking of tying deals should be justified by efficiency gains. The traditional leverage theory, on the other hand, assumes that tying deals by a dominant company serve to expand monopoly power and are therefore anti-competitive per se.

In Business Administration is similar to joint production spoken of tying when different services in a fixed ratio combined and offered as a "package". In contrast to joint production with natural law or technically inevitable production , joint transactions are deliberately put together by the manufacturer. This can involve the coupling of needs-related or even usage-related services. However, services can also be combined with one another that do not simply belong together in terms of sales and in extreme cases have nothing to do with one another. If different types of products are combined to form a unit of turnover through commercial usage, then it is a single transaction . This is the case, for example, when tubular furniture with a wooden table is sold as a garden set.

International

Coupling transactions are generally permitted in Austria ; however, they can be anti-competitive for various reasons. There may be a violation of the prohibition of free gifts, the offer may violate § § 1 of the Unfair Competition Act (UWG), § 2 UWG due to price concealment or it may be an immoral opening offer. The case concerned a driver's license training, a car and insurance "from a single source", which was considered permissible. In a controversial ruling in September 2016, the Supreme Court decided that print media announcements, recommendations and other contributions and reports for which a fee is paid for publication may only be published if these publications are identified as advertisements, paid insertion, advertising or in an equivalent manner are.

In Switzerland , according to Art. 254 OR, a tied transaction in connection with the rental of residential or business premises is null and void if the conclusion or continuation of the rental contract is made dependent on it and the tenant assumes an obligation towards the landlord or a third party that not directly related to the use of the rental property. If a rental agreement is made dependent on part of the home furnishings being taken over, this agreement is void.

If a buyer in the USA is forced to accept a secondary product in order to be able to purchase the desired main product, such a contract is illegal.

See also

literature

  • Jansen, Udo: The coupling contracts in the law of the restraints of competition, Bad Homburg vdH 1968, ISBN 978-3-7890-9811-6

Individual evidence

  1. ↑ Michael Kleinaltenkamp / Wulff Plinke / Frank Jacob / Albrecht Söllner (eds.), Market and Product Management , 2006, p. 332
  2. ^ BGH, judgment of June 13, 2002, Az .: I ZR 173/01 = BGHZ 151, 84
  3. ↑ BGH GRUR 2006, 161
  4. ↑ Helmut Köhler, On the scope of Sections 1 and 3 UWG after the abolition of the Discount Act and Addition Regulation , in: GRUR 2001, 1067, 1069
  5. ↑ Hartmut Eisenmann / Ulrich Jautz, floor plan of industrial property rights and copyright , 2015, p. 201
  6. ↑ Andreas Klees, in: Wolfgang Kilian / Benno Heussen, Computerrechts-Handbuch , 33. EL, 2017, part 6 marginal number 101, 105 ff.
  7. ↑ BGBl. I p. 1745, 1747
  8. ↑ BGH NJW 2004, 2375, 2376
  9. ^ BGH, judgment of February 23, 2006, Az .: III ZR 167/05 = NJW 2006, 1276
  10. ^ Robert H. Bork, The Antitrust Paradox , 1978, p. 140
  11. ↑ Joseph P. Bauer, A Simplified Approach To Tying Arrangements , in: Vanderbuilt Law Review 33, 1980, 291 f.
  12. ↑ Paul Riebel (Ed.), Contributions to business management earnings theory , 1971, p. 172
  13. ↑ Paul Riebel (Ed.), Contributions to business management earnings theory , 1971, p. 172
  14. ↑ Josef Hellauer, Welthandelslehre , 1954, p. 256
  15. ^ OGH , decision of September 29, 1998, GeschZ .: 4Ob241 / 98i
  16. ^ OGH, judgment of September 26, 2016, GeschZ .: 4Ob60 / 16a
  17. ↑ Handelsblatt , Competition and trade regulation , Volume 40, Issues 7-12, 1990, p. 581