Gleiss Lutz secures important victory in Düsseldorf Higher Regional Court against anticompetitive practices of associations
Antitrust law has an important role to play in the club/association landscape too. Recent years have seen exclusivity clauses in the by-laws of national associations come onto the radar of the cartel authorities (cf., for example, the cases involving the International Skating Union (ISA), the International Basketball Federation (FIBA) and the Fédération Internationale de l’Automobile (FIA)). Where national associations use their market power to elbow competitors out of the market for events and competitions, the cartel authorities see this as an unlawful restriction of competition.
Gleiss Lutz has now succeeded in securing an important victory against the German Kennel Association (Verband für das Deutsche Hundewesen e.V. / VDH) in a similar case. The judgment handed down by Dortmund Regional Court prohibits this umbrella organisation from issuing anticompetitive instructions to the German Shepherd Dog Association (Verein für Deutsche Schäferhunde e.V. / SV), ruling that the SV must be able to send its breed and show judges to rival events in the future too. Dortmund Regional Court stated after oral hearing on March 4, 2020 that instructions issued by the VDH in December 2019 violate European and German antitrust law, arguing that these constituted both a prohibited decision by a business association aimed at preventing competition and a prohibited abuse of market power. In appeals proceedings, the Düsseldorf Higher Regional Court confirmed this decision in all key points in its final judgment of 7 September 2020. The preliminary injunction issued by Dortmund Regional Court on February 12th, 2020 was lifted for purely formal reasons (8 O 2/20 [Kart]). VDH revoked the instruction in question immediately.
The background to this is an ongoing dispute over SV’s operations between the World Canine Organisation (Fédération Cynologique Internationale / FCI), the international umbrella organisation for all-breed dog sports and breeding, and the World Union of German Shepherd Associations (Weltunion für Vereine für Deutsche Schäferhunde / WUSV), the international umbrella organisation for German shepherd dogs. Since its inception more than 120 years ago, the SV has been the keeper of the holy grail of breeding standards for German shepherd dogs and a member of both world associations. The instructions issued by the VDH in December 2019 forbad the SV from sending its breed and show judges to events outside the aegis of the FCI. Associations that “only” belong to the WUSV, and not the FCI, were therefore unable to put on any breed shows or competitions any more. SV judges are absolutely vital to the success of German shepherd (breed) shows. Only SV judges are allowed to issue the pedigree and certificates that are required for recognition as a pedigree dog, for breeding and for the sale of purebred German shepherd dogs.
Gleiss Lutz handled this pilot case for three WUSV member associations that are not cooperating with the FCI, namely from Spain, Hungary and the USA (Real C.E.P.P.A. – Real Club Español del Perro de Pastor Alemán, Magyarországi Német Juhászkutya Klub, United Schutzhund Clubs of America), in Dortmund Regional Court and in Düsseldorf Higher Regional Court.
The WUSV associations were advised by the following Gleiss Lutz team: Dr. Petra Linsmeier (partner, competition/antitrust), Dr. Luidger Röckrath (counsel, litigation, both lead, Munich), Dr. Björn Kalbfus (counsel, intellectual property, Munich) and Kathrin Haag (competition/antitrust, Munich). Gleiss Lutz has already handled important court cases around anticompetitive practices of associations in the past, e.g. for the Euroleague against FIBA Europe (1 HK O 8126/16) and for billiards table cloth supplier against the Bavarian Billiards Association (4 HK O 13978/08), both in Munich I Regional Court.