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
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
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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