DISEÑO DE UN CURSO EN LA MODALIDAD SEMIPRESENCIAL

The preceding section has explained broadly how Ordoliberal scholars had an impact on the West German government and its economic policies. The aim of this section is to consider specifically how tying law developed in German competition law and when Ordoliberalism made an impact. It shall be shown that the earliest references to tying precede both US/Allied and Ordoliberal influence. Over time however the law developed and took on influences from US anti-trust law and Ordoliberal theory during the period after World War II.

This gave rise to the German law which heavily influenced the EEC Treaty’s provisions on tying.

The very earliest references to tying precede the Ordoliberals by quite some margin. Section 138 of the “Bürgerliches Gesetzbuch” (BGB) or German Civil Code stated that contractual restrictions that paralyze (lähmen) the economic freedom (wirtschaftliche Bewegungsfreiheit) of a natural or legal person were considered void.⁷¹ This was originally enacted in 1900. Without going into the nature of tying, the German Supreme Court on occasion caught tying under this law,⁷² although the wording of the law is clearly so broad that is could be used to apply to a number of different contractual restrictions and was not constructed specifically to target tying behaviour. However, later in 1932 the

“Zugabeverordnung” (or ZugabeVO, enacted 3/9/1932) contained what was for the first time a clear reference to a tying prohibition set out in German law.

It stated in section 1 paragraph 1, sentence 3 the following:

"The same applies (the prohibition set out previously), when another product or service is offered for a total price in order to conceal the addition of a commodity or service."⁷³

71 Udo Jansen, Die Kopplungsvertäge im Recht der Wettbewerbsbeschränkungen (Band 5, Bad Homburg, Gehlen, 1968) page 96

72 Bandeisen- und im Schuhmaschinenfall, RGZ 135, 145; 165, 1; vgl. oben S. 54.

73 In the original text: "Das gleiche gilt (d. h. das Verbot nach Satz 1), wenn zur

Verschleierung der Zugabe eine Ware oder Leistung mit einer anderen Ware oder Leistung

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This law was enacted prior to the Second World War, and predates Ordoliberal influence which only really came to prominence during the allied occupation of Germany. Therefore it is possible to see that the very earliest tying prohibitions that existed in Germany were unlikely to be the result of the influence of Ordoliberal scholars. Rather it developed out of very broad sections of the German Civil Code regulating business behaviour using broad moral standards and a general regard for individuals economic freedom. It is also worth noting that while the Zugabeverordnung describes a tying like scenario in German Law, it does not use the terminology to refer to tying that is presently familiar in German law.⁷⁴ These terms only came into the German legal vernacular after the Second World War.⁷⁵

At the end of the Second World War a second stage of competition law development came into play in Germany. The terms more widely associated with tying in German law currently ("Kopplungsvertrag" or "Kopplungsgeschäft) started to appear in the law at this time.⁷⁶ It was after the end of World War II when the Allies, particularly the United States, sought to break up the German cartels that these terms came into use.⁷⁷ The Allied governments enacted competition laws in their zone⁷⁸ that prohibited tying contracts.⁷⁹ These laws essentially followed the American position from section 3 of the Clayton Act⁸⁰

zu einem Gesamtpreis angeboten, angekündigt oder gewährt wird." See; Udo Jansen, Die Kopplungsvertäge im Recht der Wettbewerbsbeschränkungen (Band 5, Bad Homburg, Gehlen, 1968) page 96;

74 "Kopplungsvertrag" or "Kopplungsgeschäft

75 Udo Jansen, Die Kopplungsvertäge im Recht der Wettbewerbsbeschränkungen (Band 5, Bad Homburg, Gehlen, 1968) page 98

76 ibid page 98-99

77 ibid page 99

78 “Wettbewerbsbeschränkungen”

79 Article V para. 9 c) 2 i Conn. m. Article I, Act No. 2 56/VO No. 78 (British Military Government Ordinance No. 78 of 12 February 1947 at page 412; American Military Government Law No.56 of 12 February 1947)

80 Clayton Act 1914, 38 Stat. 731; 15 USCA Section 14 (1953); Section 3:

“It shall be unlawful for any person engaged in commerce, in the course of such commerce, to lease or make a sale or contract for sale of goods, wares, merchandise, machinery, supplies, or other commodities, whether patented or unpatented, for use, consumption, or resale within the United States or any Territory thereof or the District of Columbia or any insular possession or other place under the jurisdiction of the United States, or fix a price charged therefor, or discount from, or rebate upon, such price, on the condition, agreement, or understanding that the lessee or purchaser thereof shall not use or deal in the goods, wares, merchandise, machinery, supplies, or other commodities of a competitor or competitors of the lessor or

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and the German courts even drew upon the US case law in the application of this law when necessary.⁸¹ However important differences existed even during this time. For example, the German Supreme Court did not follow the US Supreme Court and applied a rule of reason approach to tying contracts instead of a per se approach.⁸² This is a significant difference. But the most significant competition law event during this period was the implementation of the Gesetz gegen Wettbewerbsbeschränkungen or the Act against restraints of Competition (GWB 1957). With regards to tying, Section 18 stated that:

(1)The Cartel Authority may declare agreements between or among enterprises concerning goods of commercial services to be ineffective … insofar as such agreements

1. Restrict one of the parties in its freedom to use the purchased goods, or other goods or commercial services, or

2. Restrict one of the parties in the purchase from or the sale to third parties of other goods or commercial services, or

3. Restriction one of the parties in reselling the purchased goods to third parties, or

4. Commit one of the parties to purchase other goods or commercial services which are by their nature or in commercial practice not related to the purchased goods or commercial services…[emphasis added]

(2) A restraint is not to be considered unfair within the meaning of

seller, where the effect of such lease, sale, or contract for sale or such condition, agreement, or understanding may be to substantially lessen competition or tend to create a monopoly in any line of commerce.”

81 Udo Jansen, Die Kopplungsvertäge im Recht der Wettbewerbsbeschränkungen (Band 5, Bad Homburg, Gehlen, 1968) page 99, see further; Fritz Rittner, Die

Ausschließlichkeitsbindungen in dogmatischer und rechtspolitischer Betrachtung (Düsseldorf, Verl. Handelsblatt 1957) page 129; Kurt Biedenkopf, Vertragliche Wettbewerbsbeschränkung und Wirtschaftsverfassung, Die Ausschließlichkeitsklausel als Beispiel (Heidelberg, 'Recht und Wirtschaft' 1958)

82 Udo Jansen, Die Kopplungsvertäge im Recht der Wettbewerbsbeschränkungen (Band 5, Bad Homburg, Gehlen, 1968) page 99; Drahtverschlußmaschinen case

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paragraph 1 lit. b, if it is insignificant in relation to the opportunities of supply and demand which continue to be available to other enterprises.⁸³

Here it refers to clauses that oblige one party to purchase goods or services not by their nature or commercially associated.⁸⁴ Further in the government draft of the GWB they also specified the right of competition authorities to prohibit the conclusion of tying contracts by dominant companies.⁸⁵ This law is strikingly similar to the 1957 Article 86(d) within the EEC Treaty (now Article 102 (d) TFEU) even using the same terminology and phraseology:

Article 86 (EEC Treaty): (d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.

But this raises the question of whether it was the original EEC Treaty⁸⁶ that influenced section 18 GWB or whether it was the negotiations in Germany around section 18 GWB 1957 that influenced the drafting of the EEC Treaty.

After all both were agreed in the same year and they both came into force at the same time. Therefore in order to establish if Ordoliberalism is a theory that is foundational to the EU competition law approach to tying, the direction of influence must be established. This will be considered in the following section.

6.0 Ordoliberal theory’s transition from German