A further important triumph for Deutsche Telekom in the lawsuit over allegedly anticompetitive and excessive charges for the use of cable ducts – Frankfurt am Main Higher Regional Court’s 1st antitrust division rules that the charges are not excessive.
The plaintiff, Vodafone Kabel Deutschland, had sued Deutsche Telekom for reimbursement of the hundreds of millions in cable duct charges paid since 2003 and also for a drastic reduction of future charges.
Requirements introduced by European law prompted Deutsche Telekom to spin off its broadband cable business in 2001 and transfer it to regional companies. In 2003 the plaintiff purchased most of the regional companies, including their fixed assets consisting mainly in the cable networks, while the cable ducts themselves remained the property of Deutsche Telekom. Contracts were signed for usage of the cable ducts. Vodafone takes the view that Deutsche Telekom abused its dominant position by agreeing excessive charges over the entire period of use. Deutsche Telekom dismissed this allegation as groundless, not least on the grounds that the contracts for use were inextricably linked with the purchase of the broadband cable business and Vodafone was extensively advised by its lawyers on all aspects of the transaction.
Vodafone already lost the case in the Higher Regional Court in 2014. In January of 2017 the Federal Court of Justice annulled the first decision on appeal and referred the case back to the Higher Regional Court, which dismissed Vodafone’s appeal on 20 December 2018, summing up as follows: “Based on a comprehensive assessment of the relevant facts, the 1st antitrust division is persuaded that the defendant’s interest in a continuaton of the agreement on the charges to be paid warrants full protection – also bearing in mind the antitrust aspects”.
Gleiss Lutz is also advising Deutsche Telekom in the parallel lawsuit instituted by Unitymedia. In the judgment it handed down on 14 March 2018, Düsseldorf Higher Regional Court confirmed Cologne Regional Court’s ruling dismissing the action.
Deutsche Telekom was advised by Dr. Petra Linsmeier (partner, antitrust) and Dr. Luidger Röckrath (counsel, dispute resolution, both Munich).
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