The Federal Court of Justice of Germany clarifies that ‘legal impossibility’ can be used as a justification for denying a potential competitor access to essential facilities and provides guidance on the respective burden of proof (Ferry Port Puttgarden II)

I. The Facts Scandlines Deutschland GmbH (Scandlines) is the owner of the Puttgarden/Fehmarn ferry port in Germany and the sole provider of ferry services between Puttgarden and Rødby/Lolland in Denmark. Two Norwegian shipping companies sought access to the ferry port in Puttgarden in order to set up an additional ferry service. The companies had in particular planned to operate from an existing ferry berth and to build the necessary parking and queuing zones in areas of currently unused rail tracks that are owned by DB Netz AG, a subsidiary of Deutsche Bahn AG. Scandlines refused to grant access to its port and both Norwegian companies submitted a formal complaint to the German Federal Cartel Office (FCO). Decision by the FCO The FCO found on 27 January 2010 that Scandlines had

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Authors

  • Freshfields Bruckhaus Deringer (Berlin)
  • Hogan Lovells (Munich)

Quotation

Frank Röhling, Christian Ritz, The Federal Court of Justice of Germany clarifies that ‘legal impossibility’ can be used as a justification for denying a potential competitor access to essential facilities and provides guidance on the respective burden of proof (Ferry Port Puttgarden II), 11 December 2012, e-Competitions Bulletin December 2012, Art. N° 57263

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