The German Approach to Price Discrimination and Other Forms of Business Discrimination

• Author: David J. Gerber
• DOI: 10.1177/0003603X8202700108
• Date: 01 March 1982
• Published date: 01 March 1982
• Subject Matter: Article

The Antitrust Bulletin/Spring 1982

The German approach

to

price

discrimination and other forms

of

business discrimination

BY DAVID J.

GERBER

*

241

Most antitrust law systems deal with the problems

of

price

discrimination either through a set

of

specific, cost-related rules

similar to those of the Robinson-Patman Act' or through the

application

of

"general principles" to price-discrimination cases.'

German law has, however, followed neither

of

these courses. It

has instead developed a unique approach to the problem

of

economic discrimination, including price discrimination, which

deserves the attention

not

only

of

those practitioners who are

faced with the issue in their practices and

of

scholars interested in

the comparative aspects

of

the system, but also of those in-

terested in the issue

of

reform

of

the current American price-dis-

crimination system.'

*

Attorney

at

Law, New York, NY.

1See, e.g.,

France

(Loi

d'orientation

du

commerce

et de

l'artisanat-Loi

Royer, December 27, 1973).

2See, e.g., Sweden §5, Konkurrensbegraensningslagen

(Law

Against Restraints

On

Competition).

3

The

history

of

reform

efforts

is briefly reviewed in

H.

SCHINDER-

MAN,

PRICE

DISCRIMINATION

IN

PERSPECTIVE

(1977). See also gen. C.

EDWARDS,

THE

ROBINSON-PATMAN

ACT

(1959),

and

BNA

Antitrust

and

Trade

Regulation Reporter, Sept. 30, 1975,

pp.

A-20.

©1982by Federal LegalPublications. Inc.

242 : The antitrust bulletin

This article analyzes the German price-discrimination system

from each

of

these perspectives.

It

contains first a description

of

the intellectual background and the historical development

of

the

legal principles involved, then an account

of

the way in which the

statute functions and how the courts have interpreted it, and,

finally, some comments comparing the German and American

approaches to the price-discrimination problem.

I.

The context and the development

of

the German price-

discrimination system

A.

Context: German antitrust law

In order to comprehend the German approach to price dis-

crimination it must be viewed against the background

of

the

larger system

of

which it is a part, namely, German antitrust law. 4

The German antitrust law rules are contained in the Law

Against Restraints on Competition' (Gesetz gegen Wettbewerbs-

beschraenkungen-GWB) which was passed in 1957 and which is

the first antitrust statute in German history," Thus the antitrust

system is relatively young. Concepts

of

free competition which

have been a fixed aspect

of

the American legal and political

system for many decades and are largely supported by deeply-in-

grained social values have been given substantial legislative ex-

4See gen. Schapiro, The German Law Against Restraints

of

Competition-Comparative and International Aspects, 62

COLUM.

L.

REV.

201 (1962),

and

Markert, Recent Developments in German Anti-

trust Law, 43

FORD.

L.

REV.

697 (1975).

5Gesetz gegen Wettbewerbsbeschraenkungen (July 27, 1957),

BGBI I

1081

[hereafter cited as GWB].

6Regulations relating principally to the control

of

cartels

had

existed earlier. See

Verordnung

gegen Missbrauch wirtschaft/icher

Machtstellungen (Nov. 2, 1923), RGB I 1067. A brief review

of

the

development

of

German antitrust law is provided in F.

RITTNER,

WIRT-

SCHAFTSRECHT 269-81 (1979).

Price discrimination 243

pression in Germany only during the last 20 or so years. Conse-

quently, the rules have by no means attained the sacrosanct,

time-honored status of many antitrust principles in the U.S. One

result of this fact is an openness to change and to experiment.

It

is important for the non-German lawyer-especially the

American

lawyer-to

keep in mind that there is only one antitrust

statute, which is viewedas a kind of code containing all the rules

of

antitrust.

It

can, of course, be changed, but new and indepen-

dent statutes are excluded by the German view that a single

legislative framework should contain all the rules for a specific

area

of

law. Where changes are made they are incorporated into

the code-like structure of the statute.

Moreover, German antitrust law reflects the preeminence of

statute over case law which is characteristic

of

civil law systems in

general. The principles of law are to a very large extent to be

found in statutes rather than in cases, in sharp contrast to the

emphasis on case law which characterizes the antitrust law

of

the

U.S. The German courts have not engaged in the kind of

extensive law-making in the antitrust area which American courts

have been forced to engage in by virtue

of

the lack

of

specificity

of

most U.S. antitrust statutes.

The administration

of

the antitrust laws in

Germany-and

thus the constellation

of

forces affecting the development

of

the

law-is

also significantly different from the American system.

One important difference is the fact that there are relatively few

private antitrust suits under the German system. The statute

permits such suits under certain circumstances,' but in practice

there have been comparatively few such suits. The law is thus

enforced primarily by means

of

actions taken by a government

7Private suits are permitted in cases where there has been a

violation of a provision which is intended to provide so-called "individ-

ual protection" (Individualschutz)-i.e., protection for individual com-

petitors rather than protection of the institution

of

competition itself.

See §35 GWB.