In a judgment of 29 July 2014, the Higher Regional Court of
Frankfurt ("Court") upheld the decision of the Regional
Court of Frankfurt dismissing the action brought by an automotive
repair shop to be admitted to the authorised repair network of a
passenger vehicle manufacturer.
The automotive repair shop had acted as an authorised repairer
for the manufacturer concerned for several years before the
manufacturer decided to rearrange its service network and to not
offer a new contract to the repair shop. In its complaint, the
repair shop argued that it met the standards for admission to the
selective distribution system of the car manufacturer and the
refusal therefore constituted unjustified discrimination in breach
of the German and EU competition rules.
The Court found that the refusal to grant access to its repair
network did not amount to either an abuse of a dominant position
under Article 102 TFEU and German law, an anti-competitive
agreement under Article 101 TFEU and German law, or an abuse of a
position of economic dependence under German law.
According to the Court, the manufacturer concerned did not hold
a dominant position on the relevant market. The Court confirmed the
market definition of the Regional Court of Frankfurt, which defined
the product market very broadly as an upstream market for repairers
of passenger cars entailing all products, services and rights which
facilitate the access to a downstream market for repair and
maintenance services of passenger cars. The Court referred to the
distinction between the upstream and downstream market established
by the German Federal Court of Justice in a judgment from 2011
concerning the commercial vehicle sector, which was also followed
by the Regional Court of Düsseldorf (see VBB on Competition
Law, Volume 2011, No. 4 and Volume 2012 No. 2, available at
www.vbb.com), in applying the same market definition to
passenger cars. In this decision, the Federal Court of Justice had
emphasised that the admission to a repair network of a specific
vehicle brand generally does not constitute a relevant market on
its own, but is part of the wider (upstream) market on which
resources for the provision of repair and maintenance services are
offered. It noted however that there could be a dominant position
of the manufacturer on the upstream market if admission to the
repair network was indispensable to access and to successfully
compete on the market for the provision of repair and maintenance
services to end-customers. Based on this reasoning, the Court
acknowledged that circumstances on the downstream market may affect
the definition of the upstream market, but concluded that not being
admitted to the authorised network did not make it impossible for
the claimant to provide repair and maintenance services.
The Court acknowledged that its view deviates from the
brand-specific market definition that the EU Commission proclaims
in its Motor Vehicle Guidelines, but considered Germany to be the
relevant geographic market and took the somewhat unusual view that
the market definition therefore should be carried out under
national law even if they might deviate from EU law.
Due to the lack of dominance on the national market, the
existence of a dominant position within the EU common market or in
a substantial part thereof had been denied a fortiori. As
a result, the Court also rejected the applicant's plea alleging
an infringement of Article 102 TFEU.
Moreover, the Court rejected the repair shops' action for
admission to the manufacturer's repair network based on a claim
under the German competition rules relating to abuse of economic
dependence. Economic dependence was found not to exist in such a
case where the repair shop is able to perform many repair and
maintenance services as an independent repairer, including services
for vehicles of the specific brand to which it seeks to be
The Court also dismissed the claimant's third plea alleging
infringement of Article 101 TFEU and the equivalent German
provision. The Court pointed out that these provisions prohibit
agreements between undertakings restricting competition,
while the refusal to admit the claimant to the authorised repair
network is a unilateral act by the manufacturer. This reasoning
seems to be in conflict with the jurisdiction of the Court of
Justice of the EU, which has held that refusals to approve
distributors who satisfy the qualitative criteria are acts
performed in the context of contractual relations with the
authorised distributors and therefore do not constitute unilateral
conduct which would be exempt from the prohibition contained in
Article 101 (1) of the Treaty.
The decision of the Court is under appeal before the Federal
Court of Justice.
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