German BGH Decisions

Antitrust Law / Private Enforcement

German BGH Decisions

Court number:

Subject of decision:

BGH KZR 25/14

Infringement of antitrust law;

Scope of the binding effect pursuant to Section 33 (4) sentences 1 and 2 ARC;

Binding effect in appeal proceedings;

In the case of selective infringements of antitrust law, the service of an immediately enforceable order to cease and desist issued by the antitrust authorities does not, as a rule, in itself eliminate the presumption that the coordination of conduct will continue to determine or influence the market situation;

§ 287 para. 1 ZPO: Evidence in the case of damage caused by a cartel infringement;

§ Section 286 ZPO: whether the claimant is affected by the antitrust violation.

BGH KZR 31/14

Right hearing;

Abusive conduct within the meaning of Section 19 (2) No. 2 GWB if feed-in fees are achieved on a comparable market which correspond to the conditions of the previous feed-in agreement (K7) with the defendants.

BGH KZR 47/14

In assessing the conditions for terminating a long-term contractual relationship with a strong supplier, the assumption that the flexibility of potential competitors to switch their supply to another supplier is limited by the room for manoeuvre opened up by market power presupposes the identification of concrete indications;

Inappropriate terms and conditions that make it more difficult to terminate a long-term contractual relationship with a norm addressee of Section 19 (1) ARC regularly constitute an abuse of market power.

BGH KZR 2/15
Urteil

Determination of the fee for a comparable service by a fee determined by the Federal Network Agency on the basis of the Telecommunications Act in accordance with the costs of efficient service provision.

BGH KZR 2/15
Beschluss

Prohibited conduct of dominant position pursuant to Section 19 ARC;
Agreement on the terms and conditions of rental agreements under competitive conditions.

BGH KZR 24/15

GmbHG § 57;

Once the capital increase has been entered in the commercial register, a defect in the form of the takeover declaration can no longer be successfully notified;

ARC Section 41 (1) aF;

Even under the application of Section 41 (1) ARC in the version of the 7th amendment to the ARC, the infringement of a legal transaction against the prohibition of execution did not lead to its invalidity, but only to pending invalidity.

BGH KZR 42/15

Retroactive effect of the new version of Section 33 (4) and (5) ARC on repayment obligations due to a breach of antitrust law and the determination of the interest rate.

BGH KZR 39/16

BGB § 312a Abs. 4 Nr. 1;

The provision of § 312a Para. 4 No. 1 BGB is applicable as a clause prohibition with valuation possibility in the sense of § 308 BGB irrespective of the Consumer Rights Directive;

A payment system which requires a substantial part of the customers to act in breach of contract is not reasonable as the only free payment option within the meaning of § 312a para. 4 no. 1 BGB;

As a rule, the customer has neither cause nor is he obliged to check for himself whether the General Terms and Conditions of Business provided by his bank as security provisions for online banking are null and void due to antitrust violations.

BGH KZR 48/15

Termination of business relationships;

Dominant position;

Definition of the market: brand-specific/overlapping.

BGH KZR 50/15

Where there is a question of assortment-related dependence, the question of when an enterprise is to be regarded as a small or medium-sized enterprise regularly depends crucially on a comparison of the size of the disabled enterprise with its competitors;

If a supplier decides at a certain point in time to switch to a qualitative selective distribution system for the distribution of his goods, it regularly argues in favour of a top position dependency if a high distribution rate can be established for the previous period.

BGH KZR 56/16

§ Section 33 (4) ARC 2005 shall also apply if antitrust authority or court proceedings for infringement of a provision of the Act against Restraints of Competition have already been initiated before the entry into force of the 7th amendment to the ARC but have only been concluded after its entry into force;

Section 33 (5) ARC 2005 applies to claims for damages which are based on cartel infringements committed before the entry into force of the 7th amendment to the ARC and which were not yet time-barred at that time;

A claim for damages due to a violation of the prohibition of cartels committed before the 7th amendment to the ARC came into force is subject to an annual interest rate of 4% for the period from the occurrence of the damage in accordance with Section 849 of the German Civil Code (BGB).

BGH KZR 59/16

Fixing minimum prices as an agreement restricting competition;
Undescribed fact of the appreciability of the restriction of competition.

BGH KZR 59/16
Beschluss

Determination of the amount in dispute.

BGH KZR 63/14

Rejection of the revision;

Price agreements contrary to antitrust law;

Obligation to contract.

BGH KZR 71/15

Suspension of the proceedings according to §148 ZPO until the decision of the ECJ;

Questions referred in connection with the Directive on the Independence of the Management of the Infrastructure Company and the Determination of Fees.

BGH KZR 73/15

Rejection of the appeal against the non-admission of the appeal - no further statement of reasons.

BGH KZR 75/15

Rejection of the appeal against the non-admission of an appeal due to new submissions only in the non-admission complaint;

Infringement of the GVR (common remuneration rules for freelance full-time journalists at GVR daily newspapers) against antitrust law, namely against Article 101 TFEU - constituent element of the fact that trade is appreciably affected.