By judgment of 11 December 2012, recently published, the German Federal Court of Justice ("BGH") annulled the judgment of the Higher Regional Court of Düsseldorf ("OLG Düsseldorf") of 7 December 2011 and ruled that Scandlines Deutschland GmbH ("Scandlines"), which is the owner of the ferry port of Puttgarden and sole provider of ferry services between Puttgarden in Germany and Rødby in Denmark, could not invoke the German legal principle of "legal impossibility" to justify its refusal to grant competing providers of ferry services access to its port.
The judgment follows a complaint submitted by the Norwegian shipping companies Bastø Fosen and Eidsiva, which had been refused access to the Puttgarden ferry port. In 2010, the German Federal Cartel Office ("FCO") adopted a decision finding that Scandlines had abused its dominant position by refusing such access, and obliged Scandlines to negotiate with Bastø Fosen and Eidsiva on the terms and conditions enabling these companies to set up an additional ferry service (see VBB on Competition Law, Volume 2010, No. 2, available at www.vbb.com).
On appeal, the OLG Düsseldorf held that Scandlines had a valid justification for refusing third-party access to its port because it considered that, in the case at hand, such access would require the expansion of the port's parking and queue areas. The Norwegian shipping companies had planned to build the necessary parking and queue areas at an adjacent unused rail facility. However, according to the OLG Düsseldorf, a legal obstacle to the shared use of the port existed, since the areas foreseen by the Norwegian shipping companies for parking and queuing were officially dedicated for railway purposes only. In the opinion of the OLG Düsseldorf, this legal obstacle amounted to a legal impossibility to grant access, and Scandlines' refusal could therefore not be considered an infringement of Section 19(4)(4) of the German Act against Restraints of Competition ("GWB") (see VBB on Competition Law, Volume 2012, No. 4, available at www.vbb.com).
In its judgment, the BGH rejected the OLG Düsseldorf's reasoning regarding the legal impossibility to grant access to the port. According to the BGH, legal impossibility does not cover merely temporary legal obstacles, but can only be inferred where it is certain that an official authorisation of the action at issue can permanently not be obtained. The BGH concluded that, in the case at hand, it was unclear whether official authorisation to use the areas dedicated for railway purposes as parking and queuing facilities could be obtained. As a result, the BGH referred the matter back to the OLG Düsseldorf, which will now have to assess the possibility to obtain official authorisation for the removal of the railway status of the areas in question.
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