Strong market position
A strong market position is a term used in German antitrust law and is synonymous with relative market power . A company that is not dominant in terms of German or European antitrust law can, under certain conditions, still have a strong market position and therefore be subject to certain antitrust restrictions, namely the prohibition of discrimination (discrimination against the upstream or downstream trade level ) and the prohibition of hindrances (hindrance to competitors ).
The strong market position is regulated by law in Section 20 (2) in conjunction with Section 20 (1) of the Act against Restraints of Competition .
requirements
The prerequisite for the assumption of a strong market position is that there is a dependency of small or medium-sized companies on the then strong market company in such a way that these small or medium-sized companies have no possibility of switching to another supplier or customer. The determination of whether the dependent company is a small or medium-sized one is determined primarily in the horizontal relationship to its competitors and only in exceptional cases in the vertical relationship to the strong market company.
Case groups
In order to determine dependency, jurisprudence has created case groups, in particular product-related dependencies and company-related dependencies. In addition, there are also the case groups of scarcity-related and demand-related dependency.
Range-related dependency
With the assortment-related dependency, a distinction must be made between the top position dependency and the top group dependency. A top position dependency exists if, for example, a retailer has to carry a very specific product in order to survive in the market at all. This was, for example, the affirmative answer for Rossignol skis in 1975. With a top group dependency, the small or medium-sized company is not dependent on a single product, but it must have several recognized brands in its range in order to be competitive. The addressees of the norm are then those companies whose products belong to the group of these branded articles. Designer furniture is one example.
Company-related dependency
The company-related dependency is to be affirmed if the business operations of the small or medium-sized company are geared towards a certain provider or customer (equipment, training of employees, etc.) in such a way that a change would be associated with high risks, i.e. not economically viable . Typically this is the case with auto suppliers or auto dealers.
EU law
The concept of a company with a strong market position is alien to EU antitrust law . Rather, EU antitrust law only prohibits the abuse of a dominant position in the internal market or a substantial part of it (Art. 102 TFEU ). The German antitrust law goes further than the European one. The power of the German legislature to enact stricter law results from Article 3, Paragraph 2, Clause 2 of the EU Antitrust Regulation, the limits are determined by Section 22 GWB.
See also
Individual evidence
- ↑ Loewenheim / Meessen / Riesenkampff Antitrust Law Section 20 GWB marginal no. 20th
- ^ BGH, judgment of November 20, 1975 - KZR 1/75 = NJW 1976, 801 - Rossignol
- ↑ BGH, WuW / E DE-R 481, 482 - designer furniture
- ↑ Regulation (EC) No. 1/2003
- ↑ The two tracks of the European u. German antitrust law, parallelism of legal systems and restrictions due to EU regulations. University of Augsburg , database on German and European business law, accessed on March 23, 2017
