Gemeinschaftsunternehmen nach dem „Ost-Fleisch“ Beschluss des BGH

Abstract

The annotated decision is a landmark case on joint ventures under German competition law. The court confirmed that rules on merger control and on the prohibition of anti-competitive behaviour are two separate sets of rules which might both apply to joint ventures. Joint ventures are therefore submitted to a two stage test under sections 1 and 36 et seq. GWB as long as they are cooperative in nature. The distinction between cooperative and concentrative joint ventures is regarded to be a "helpful tool" to limit the scope of application of section 1 GWB (prohibition of anti-competitive behaviour). For practical purposes the BGH considers section 1 GWB to be blocked by the rules on merger control if a joint venture' is concentrative. The BGH’s definition of concentrative joint ventures uses criteria similar to those applied in the Commission's 1994 notice on concentrative and cooperative joint ventures. The court rightly held that the joint ventures autonomy is not material for distinguishing cooperative and concentrative joint ventures. In the present case, the parents were actual competitors in the product and geographical markets of the joint ventures under formation. It was therefore likely that competition between the parents would be reduced. Nevertheless, the court is criticized for relying only on the cost reduction intended by the parents to deduce their interest in coordinating competitive behaviour. Possible use of the joint venture as a device for coordination was held to be sufficient to constitute an infringement of section 1 GWB.

The decision raised specific procedural questions as the court of appeal had issued separate decisions dealing with the respective application of merger control rules and the prohibition of cartels. The BGH held that a decision prohibiting the joint venture on both grounds could not form the object of separate court decisions. Actual german competition rules do not provide for both sets of rules to be applied in the same proceedings. However, under Regulation 1/2003 the Bundeskartellamt will be forced to apply Article 81 EC and German merger control rules simultaneously within the time frame for merger cases. The current reform of german competition law should provide for simultaneous application in purely national cases as well.