Abuse of buyer power
The abuse of buyer power describes a group of cases under antitrust and unfair competition law , which in Germany is covered by Section 20 III GWB and Section 4 No. 10 and No. 1 UWG . This involves various inadmissible behavior by large buyers (primarily retail chains ) with which they want to induce their suppliers to grant special discounts. In addition to the demand for additional discounts, the so-called tapping falls into this group of cases. In order to be inadmissible, it is not enough to be able to force a subsidy for advertising costs ; further characteristics described in the article must be added.
History of the case group
The discussion about a possible abuse of buyer power arose in the 1970s. At that time, the shift in power from the manufacturers to the increasingly influential retail chains became increasingly evident. The demand for free rebates was assessed by the prevailing opinion at the time, which was also supported by the BGH, as a denial of the function of the retail trade and accordingly viewed as immoral (today: unfair). However, this jurisprudence has long been outdated and it is probably the prevailing opinion today that such a “function” does not even exist.
Tap
Probably the most important form of abuse of buyer power is tapping . The underlying facts are diverse and can be aptly described in terms of entry fees or fees. A typical requirement is, for example, a “shelf rental”: The retailer simply receives payment for the inclusion of a product in his range. In the case of Lichte, this is ultimately just a grant of a discount. Their unusual design is primarily intended to keep them hidden from the competition.
Legal evaluation
The admissibility of a required discount or similar measures must be checked from the point of view of antitrust and fairness law.
Antitrust law
The primary point of reference here is Section 20 (3) GWB. Addressees of the norm are dominant and strong market companies, as well as business associations. A demand for certain advantages is only "objectively justified" within the meaning of the standard if a contractual partner without economic superiority could justifiably raise it. A request does not mean hard bargaining , which is completely normal in business life.
Fairness law
The § 20 III has GWB against the unfair competition law a blocking effect so that it can come in those companies that are not covered by the antitrust standard, applicable only if additional Unlauterkeitsmerkmale present. Such are, for example, the threat to the supplier to break existing contracts, to denigrate him to third parties, to disclose internal contract information or the brand image, for example through low price offers or the like. to harm (all § 4 No. 1 UWG). The customer can also try to enforce purchasing advantages to the detriment of the competitors, in particular by demanding an exclusive preference from the supplier (then Section 4 No. 4 UWG).
Individual evidence
- ↑ Cf. “Register of Sins” - sample catalog of the Federal Ministry of Economics of distortion of competition, printed in: WRP 1975, 24 ff.
- ↑ BGH, judgment of December 3, 1976 - I ZR 34/75 - NJW 1977, 631 = GRUR 1977, 257 - shop window advertising; BGH, judgment of December 17, 1976 - I ZR 77/75 - NJW 1977, 1242 = GRUR 1977, 619 - entrance fee.
- ↑ See BGH, judgment of April 22, 1982 - I ZR 66/80 - WRP 1982, 632 = GRUR 1982, 677 - price labeling by the supplier and BGH, judgment of June 9, 1982 - I ZR 96/80 - GRUR 1982 , 737 = NJW 1983, 169 - opening discounts, which contain a significant weakening of the argumentation with predetermined trading functions (as in the judgments “shop window campaign” and “entrance fee”).
- ↑ Köhler / Bornkamm, UWG. 30th edition, § 4 marginal no. 10.134; Emmerich, unfair competition. 9th edition § 8 marginal no. 20th
- ^ Sosnitza, Cases on Competition and Antitrust Law. 6th ed. P. 26.
- ↑ In detail on the whole: Köhler, On the control of buyer power according to the new GWB and the new UWG, WRP 2006, 139.
- ↑ Köhler, On the competition of fairness and competition law norms, WRP 2005, 645.
- ↑ Emmerich, Unfair Competition. 9th edition § 8 marginal no. 21st
