Unilateral conduct

Unilateral conduct by non-dominant firms

Are there any rules applying to the unilateral conduct of non-dominant firms?

The LSA contains rules on unilateral conduct that apply also to non-dominant firms. The aim of the LSA is to protect competition on the merits and a structure of competition characterised by a multitude of small and medium undertakings (see Supreme Cartel Court in Bayrisches Sägerundholz I, 16 July 2008).

Section 1 of the LSA generally prohibits conduct that is likely to jeopardise merits-based competition, in particular rebates or conditions that are not objectively justified. Section 2 of the LSA prohibits discrimination on price or conditions that are not objectively justified. Section 4 of the LSA provides an obligation to contract if a refusal to deal would jeopardise the local supply of goods necessary for daily needs, or if it would significantly affect the competitiveness of a final retailer.

The scope of the prohibitions and obligations pursuant to the LSA is largely disputed and the existing case law is very specific; recently however, the Supreme Cartel Court considered that the provisions in the LSA are equivalent in substance to the respective provisions in section 5 CartA (Fachverband Reisebüros v Lufthansa, 12 July 2018). Infringements of the prohibitions and obligations contained in sections 1 to 4 of the LSA are not subject to fines.