OGH: Obligation to contract for sales with "added value”
Even if a company dominates the market, it may in principle refuse to enter into a business relationship for objectively justified reasons. It may also choose the distribution channels, but may not prevent the creation of a new product.
In the present case, the defendant is a stock company (Aktiengesellschaft) established under Section 1 of the ASFINAG-Act and offers digital toll products via its web shop. According to its general terms of use, the commercial resale of its products is not permitted without its consent. It therefore does not conclude contracts with third parties who wish to sell digital toll products via their own web shop. In its own web shop, the defendant distinguishes between entrepreneurs and consumers. In the case of purchases by consumers, the digital product is valid at the earliest after the expiry of a waiting period of 18 days, within which the consumer can declare withdrawal. Entrepreneurs, on the other hand, can purchase toll products with immediate validity.
The applicant is a company with its office based in Germany. It wishes to make these toll products available to customers - in particular those residing outside of Austria - through online sales in exchange for a service fee, while also offering immediately valid toll products to consumers and, to that extent, taking on the risk of withdrawal.
The defendant blocked the applicant's access to its web shop, which forced the applicant to completely cease its business model. The applicant sought to stop the denial of access to the web shop and the abuse of market power that it constituted, and filed a motion for a protective order to that effect.
The antitrust court (Kartellgericht) granted the application in its entirety. As a market-dominant company, the defendant was subject to a contracting obligation and could only refuse to conclude contracts for objective reasons. The defendant's refusal to conclude contracts violated the prohibition of abuse of a dominant position within the market.
The Supreme Court (Oberster Gerichtshof, OGH) confirmed that even a market dominator under antitrust law can refuse to enter into a business relationship for objectively justified reasons. If, however, a market already exists because it had already contracted with other entrepreneurs, the refusal to enter into a business relationship could constitute a violation of the prohibition of abuse of market power. Within these limits, however, the company was free to decide which distribution channels it chose and which prices it charged. This also applied to the defendant in this case, and the OGH rejected further claims.
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