In a recently published judgment issued on 20 December 2018, the Higher Regional Court of Frankfurt finally rejected the claim of a major operator of broadband cable, Kabel Deutschland, that Telekom Deutschland was abusing its dominant position by charging excessive prices when renting cable conduits to Kabel Deutschland.
In 2003, Kabel Deutschland had acquired a subsidiary of Telekom Deutschland, including its broadband cable networks. The cable conduits, through which the broadband cable networks run, however, remained the property of Telekom Deutschland. Together with the company purchase agreement, the parties had entered into a rental contract for the cable conduits at an agreed rental fee. In 2010, the German Federal Network Agency fixed the rental fees for access to cable conduits at a significantly lower level than that agreed in the rental contract between the parties. As a result, Kabel Deutschland filed a complaint against Telekom Deutschland with the Regional Court of Frankfurt, alleging that Telekom Deutschland was abusing its dominant position in the market for access to cable conduits by refusing to reduce the rental fee agreed in the ongoing rental contract. Kabel Deutschland asked the Court to oblige Telekom Deutschland to reduce the rental fee agreed in the rental contract. The Regional Court of Frankfurt rejected the claim in 2013, and so did the Higher Regional Court of Frankfurt on appeal, based essentially on the reasoning that the rental contract, including the level of the rental fee, was closely linked to the agreement on the purchase of the Telekom Deutschland subsidiary, and that the agreed rental fee was part of the consideration that Kabel Deutschland agreed to pay for the entire transaction (see VBB on Competition Law, Volume 2015, No. 2, available at www.vbb.com).
The case was further appealed to the German Federal Court of Justice, which decided in January 2017 that the case should be referred back to the Higher Regional Court of Frankfurt (see VBB on Competition Law, Volume 2017, No. 3, available at www.vbb.com). The Higher Regional Court of Frankfurt has now finally dismissed Kabel Deutschland's claim that the rental fee of its ongoing rental contract with Telekom Deutschland should be reduced because it constituted an abuse of dominance through excessive pricing.
In its judgment, the Higher Regional Court of Frankfurt confirmed that the rental contract and the level of the rental fee agreed between the...