Dominant position

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Dominant position is a term used in antitrust law . It describes a situation in which a company is exposed to little or no competitive pressure. The exact definition differs depending on the legislation. A company can dominate the market as a supplier or a customer . It is possible that several companies jointly have a dominant position in one market. In this case, we speak of joint or collective market dominance .

Companies in a dominant position are subject to abuse control by the competition authority . In addition, antitrust law generally prohibits company mergers that create or strengthen a dominant position.

Definition in laws

Germany

According to the German Law against Restraints of Competition (GWB), a company is dominant if it is in the relevant market , which is determined by a market definition ,

  • is without competitors or is not exposed to any significant competition or
  • has a superior market position in relation to its competitors.

In the Act against Restraints of Competition, until the 8th amendment, it was assumed that a company had a market share of one third or more (Section 19 (3) sentence 1 GWB), and since June 30, 2013, from 40 percent ( Section 18 (4) GWB) that a company had a dominant market position is. However, these presumptions are not in the civil procedural sense ( § 292 ZPO). Rather, the cartel authority and cartel court have to clarify the market situation. Only if this clarification is unsuccessful and market dominance cannot be established properly, the presumption prevails.

A group of companies is considered to be dominant if it consists of a maximum of three companies that together achieve a market share of 50 percent or a maximum of five companies that together achieve a market share of two thirds ( Section 19 (3) sentence 2 GWB). Because of the reversal of the burden of proof ordered ("unless the company can prove that ..."), this is a real presumption in civil proceedings. As a rule, the market share is to be determined according to the turnover, only subsidiary to the sales figures.

In German law, a strong market position is to be distinguished from the dominant position .

Switzerland

In the Swiss Federal Law on Cartels and Other Restraints of Competition of October 6, 1995 (Cartel Law, KG, SR 251), companies with a dominant market position are single or multiple companies that are able to differentiate themselves from other market participants (competitors, suppliers or customers) in a market. to behave independently to a significant extent (Art. 4 Para. 2 KG). In the revision of the Cartel Act, which came into force on April 1, 2004, the wording in brackets "(competitors, suppliers or customers)" was inserted. Whether this insert represents a more precise definition or an expansion of the concept of market dominance (to include so-called relative market dominance) is a matter of dispute in teaching. The Swiss antitrust law does not recognize any presumption of facts with regard to the dominant position.

determination

To determine a dominant position, the relevant market and the company's position on this market must be determined. Criteria for determining the position on the market can be:

  • the distribution of market shares in the market,
  • the development of market shares,
  • the financial strength,
  • access to procurement and sales markets,
  • Links with other companies,
  • legal or real market access restrictions,
  • Number and strength of competitors.

Abuse

The abuse of a dominant position, which is illegal under antitrust law, can take place in a variety of ways. The antitrust laws of Germany and Switzerland therefore only provide a non-exhaustive list of possible offenses of abuse. Demanding unreasonable purchase and sales prices or other terms and conditions ( abuse of exploitation ), targeted undercutting of prices ( abuse of disability ) or denial of access to infrastructure facilities (structural abuse ) may be inadmissible . Even true statements of fact about competitors can, under certain conditions, constitute an abuse of the dominant position.

Illustrative cases from practice

Germany

2002 the Federal Cartel Office prohibited the takeover of Ruhrgas AG by E.ON . A ministerial approval then made the project possible.

Because of the strengthening of dominant positions, the Federal Cartel Office prohibited the takeover of ProSiebenSat.1 Media AG by Axel Springer Verlag on January 19, 2006 . As a result, Axel Springer Verlag announced on January 31, 2006 that it would refrain from the takeover.

In 2014, the Federal Network Agency issued a regulatory order against a successor company of the Deutsche Bundespost , Media Broadcast GmbH, as the dominant company in the VHF broadcasting market, to enable competition in this market for the first time.

Switzerland

In a ruling dated March 5, 2001, the competition commission determined that the Freiburg electricity company was abusing a dominant position in regional electricity distribution by refusing to conduct electricity from its competitor Watt over its network. The decision was supported by the Federal Supreme Court on June 17, 2003.

Swisscom Mobile was sanctioned by the Swiss Competition Commission on February 5, 2007 with a sanction of CHF 333 million for demanding unreasonably high termination fees between April 1, 2004 and May 31, 2005, when it assumed a dominant position in the termination of calls abused their cellular network . A complaint was announced against the decision .

Individual evidence

  1. sbr-net.de, Federal Government approves draft of the 8th GWB amendment , April 5, 2012 ( Memento of the original of November 4, 2013 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice.  @1@ 2Template: Webachiv / IABot / www.sbr-net.de
  2. beck.de, Law against Restraints of Competition: 8th GWB amendment , accessed on November 3, 2013
  3. Möschel in Immenga / Mestmäcker, GWB, 4th edition, § 19 marginal no. 93 mwN
  4. BGH, WuW / E BGH 2783, 2790 - trademark acquisition
  5. Florian Bien: European and German Antitrust Law University of Würzburg , status: October 7, 2014, p. 57 ff.
  6. Peter Krebs: Outline proposal for the examination of the abuse of absolute market power (dominant market position), the abuse of permitted cartels and permitted price fixing according to §§ 19, 20 Abs. 3 GWB ( Memento of the original dated April 7, 2016 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. University of Siegen , (no year) @1@ 2Template: Webachiv / IABot / www.wiwi.uni-siegen.de
  7. Nils Gildhoff / Robert Tubis: The anti-trust- illegal obstruction of competitors through denigration , in Betriebs-Beratung 2016, p. 835 ff.
  8. Decision of the Federal Cartel Office of January 19, 2006 ( Memento of the original of December 6, 2006 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. (PDF; 216 kB) @1@ 2Template: Webachiv / IABot / www.bundeskartellamt.de
  9. Bundesnetzagentur.de: Regulatory order for the provision of terrestrial transmission systems and VHF antennas (with) use ( memento of the original from July 23, 2015 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.bundesnetzagentur.de
  10. Speech of the press conference on March 23, 2001 ( Memento of the original of June 14, 2007 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.weko.admin.ch
  11. Press release of the Competition Commission of February 16, 2007 ( Memento of the original of June 9, 2007 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.weko.admin.ch