Market place principle

The market location principle is one of several principles that are intended to regulate the legal status of goods and service providers in a common market such as the European Union in cross-border traffic.

The market place is the place where the interests of the service provider and the service recipient meet. With regard to the competition between companies in a market, it is the place where the different interests under competition law noticeably clash.

The rules of the target country, especially the market to which the offer is directed, apply. Foreign companies are also subject to the law of the market place if they appear in the market of the market place. This should result in largely equal treatment of domestic and foreign companies in certain areas in the relevant target market.

European single market

In connection with the internal market of the European Union , the market place principle states that with regard to a good or a service that has been properly manufactured and placed on the market in accordance with the legal provisions of a member state of the Union or a third country, the law of the member state of the Union shall in principle apply to whose market the service is geared towards sales.

In practice, the market location principle, especially in connection with offering via the Internet, can lead to high legal information costs for the provider ( company ). In principle, a service offered via the Internet is aimed at all potentially interested parties worldwide, unless the provider makes restrictions in advance with regard to certain markets (states) (prior definition of the target direction of the offer).

In the European internal market, the market location principle is mainly used in the areas of competition law , banking law , financial market law and antitrust law (including supervisory law).

Unfair competition

The market location principle is particularly relevant in the context of competition law if there is a noticeable impairment.

If an entrepreneur violates morality in the course of his economic activity, in particular advertising , a competitor can assert injunctive relief and claims for damages. This is known as unfair competition and is a specific form of breach of law in competition law.

In connection with offers from foreign entrepreneurs, the primary question that arises is the extent to which their offer is actually aimed at a specific market and, even if it is permissible under the domestic legal situation of the service provider, whether it represents an inadmissible impairment of competition law for the foreign target market. With the help of the market location principle, an attempt is made to determine which potential interested parties the offer was or is aimed at at all, and whether another entrepreneur is entitled to an injunction or a claim for damages against this foreign entrepreneur.

In principle, every advertisement published on the Internet is one that crosses national borders (cross-border advertising). The worldwide omnipresence (omnipresence / ubiquity) of the offer on the Internet and / or advertising, therefore, in connection with the market location principle, also means that in the case of cross-border advertising the question regularly arises whether national courts have jurisdiction at all and how the court has jurisdiction Would judge advertising according to national law. This in turn may result in high legal information costs for the provider of the service and in some cases also legal uncertainty, since many regulations are not standardized in the law itself, but have been or are being worked out by national case law . Determining the currently valid case law of another state and aligning its offer or advertising accordingly is in turn associated with a very considerable financial and time investment for companies.

Under certain circumstances, an act that was carried out exclusively abroad can, due to the market location principle, constitute a violation of the national competition law of another state and lead to the application of the law of another state and thus to the conviction of a foreign company, provided that the act relates to the Market (company) of another country noticeably affects.

If a competition violation has been committed, this is judged by the national courts according to the crime scene principle . Due to the market location principle, the location of the (potential) competition infringement is not relevant for the crime scene, but rather the location on which the advertising (service) had a noticeable effect.

Country of origin principle versus market location principle

The market location principle can be replaced by the country of origin principle by the legislature . Then, for example, Internet advertising of a European company has to be judged according to the law of the country in which this company is based. As a result, national competition law would largely no longer apply to foreign companies that gear their services (and advertising) to a domestic market.

taxation

The market place principle does not regulate the taxation of a delivery or service, as is the case with the country of origin or country of origin principle or the country of destination principle .

Jurisprudence

Examples of the case law of German courts in connection with the market location principle (selection):

BGH, judgment of June 4, 1987, I ZR 109/85, GRUR 1988, 453, 454.
BGH, judgment of February 11, 2010, I ZR 85/08, paras. 12-15 - Advertisement in Bulgaria.
Düsseldorf Higher Regional Court, judgment of October 21, 2008, Az. I / 20 U 189/08 on the scope of the market location principle.
OLG Cologne, judgment of February 19, 2014, 6 U 163/13, No. 11.
LG Karlsruhe, judgment of December 16, 2011 (14 O 27/11 KfH III).
LG Siegen, judgment of 9 July 2013 (Az .: 2 O 36/13).
LG Stuttgart, judgment of May 15, 2007 - 17 O 490/06, not final (appeal to the OLG Stuttgart, 2 U 48/07).
Düsseldorf administrative court on the application of the market location principle in public law (judgment of September 22, 2011, 27 K 4285/09).

Example of a case law of the Supreme Court in Austria on the market place principle

OGH in 4 Ob 161 / 15b. Operative part: In accordance with Article 6, Paragraph 1 of the Rome II Regulation, claims for injunctive relief under competition law must be assessed according to the respective market location law.

literature

Fabian L. Christoph, Admissibility of cross-border banking supervision according to the market location principle in: Zeitschrift für Bankrecht und Bankwirtschaft (ZBB), Cologne 2009, Vol. 21.2009, 2 (Apr. 15), pp. 117–126, ISSN 0936-2800 .
Eva-Maria Kieninger, The localization of competition violations on the Internet - is the market location principle sustainable? in: The importance of international private law in the age of the new media , Stuttgart 2003, law and new media, pp. 121–133.
Helena Isabel Maier in Linking to the Market Place in International Antitrust Law: An investigation under international jurisdiction and conflict of laws, including comparative legal considerations on English law , Frankfurt am Main 2011, Lang Verlag, ISBN 978-3-631-60995-8 .
Stefan Modemann in The Legal Admissibility of Advertising E-Mails , Diss., Cologne 2003.
Peter Ruess; Andrea Patzak, market location principle and user location: Thoughts on the problem area of international competition law and data protection on the Internet in: Law of data processing (RDV); Journal for data protection, information and communication law, Frechen-Königsdorf 2003, Vol. 19 (2003), 4, pp. 167–177, ISSN 0178-8930 .

Individual evidence

↑ See: § 2 para. 1 no. 3 dUWG . BGH GRUR 2007, 245 item 11. Stefan Modemann in The legal admissibility of advertising emails , p. 195.
↑ See e.g. B. Section 3 (1) dUWG .
↑ For example, unsolicited e-mail advertising ( spam ) or unsolicited telephone advertising (cold calling). For inadmissibility see: § 7 dUWG .
↑ Compare e.g. For example: Düsseldorf Higher Regional Court, judgment of October 21, 2008, Az. I / 20 U 189/08 on the scope of the market location principle.
↑ See z. B. LG Munich CR 1997, 155, ff.

[1] See: § 2 para. 1 no. 3 dUWG . BGH GRUR 2007, 245 item 11. Stefan Modemann in The legal admissibility of advertising emails , p. 195.

[2] See e.g. B. Section 3 (1) dUWG .

[3] For example, unsolicited e-mail advertising ( spam ) or unsolicited telephone advertising (cold calling). For inadmissibility see: § 7 dUWG .

[4] Compare e.g. For example: Düsseldorf Higher Regional Court, judgment of October 21, 2008, Az. I / 20 U 189/08 on the scope of the market location principle.

[5] See z. B. LG Munich CR 1997, 155, ff.