On 18 November 2015, the Higher Regional Court of
Düsseldorf (the "Court") annulled a decision issued
by the German Federal Cartel Office ("FCO") on 3 July
2014, which held that the supermarket chain EDEKA had abused its
market position by prompting four suppliers of sparkling wine to
grant it discounts – so-called "wedding rebates"
– and contractual benefits following EDEKA's takeover of
the supermarket chain Plus in 2009 (see VBB on Competition Law
Volume 2014, No. 7, available at
In 2014, the FCO found that, whilst not being dominant,
EDEKA's market position on the procurement market in the food
retail sector was strong enough for its suppliers to be
economically dependent on EDEKA. On appeal, the Court concluded
that the "wedding rebates" were the result of
negotiations between almost equally powerful parties. According to
the Court, as a full-range provider, EDEKA is dependent on the
goods of the suppliers. Due to the prominence of their brands,
these goods are considered to be "must-stock" products
and the concrete market power of EDEKA is therefore opposed by the
countervailing power of the suppliers.
The Court found that the commercial negotiation process, which
included claims and counterclaims, indicated that the parties were
of approximately equal power. All suppliers of sparkling wine were
able to negotiate weighty counter-demands and substantially reduce
the initial demands of EDEKA.
In addition, the Court found that some of the accusations
against EDEKA were based on inaccurate facts. For example, the
Court found that, contrary to the assumption of the FCO, EDEKA did
not unilaterally impose improved payment targets on the suppliers,
but rather made new payment targets dependent on the approval of
the suppliers of sparkling wine, and entered into negotiations
after the suppliers expressed objections.
The decision of the Court is not final and may be appealed to
the German Federal Court of Justice.
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