Preliminary injunction from Hannover Regional Court for abuse of market dominance: Amazon’s constitutional complaint unsuccessful – EU Antitrust, Competition

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The constitutional complaint filed by Luxembourg Amazon Services Europe S.à rl against the mediatized decision of the Regional Court [Landgericht, LG] of Hanover of July 22, 2021 (case no. 25 O 221/21) concerning an alleged violation of the principle of procedural equality of arms was dismissed: the German Federal Constitutional Court
[Bundesverfassungsgericht, BVerfG] did not accept the constitutional complaint for decision.

Background: Oppenhoff procured on behalf of mi.to. pharm an injunction before the LG Hannover against Amazon for abuse of its dominant market position, which was issued pursuant to the motion and without a prior hearing. Amazon had blocked mi.to. pharm seller’s account with a general reference to a violation of the terms of use, without providing other reasons.

LG Hannover considered Amazon’s behavior to be an abuse of its dominant market position. Amazon subsequently filed a constitutional complaint claiming that its right (equivalent to a fundamental right) to procedural equality of arms had been violated because the regional court – in Amazon’s view – had conducted a “procedure ‘one-sided’ secret and failed to give him a fair hearing.

The BVerfG disagreed, especially since Amazon had not appealed the interim injunction at the time. Moreover, according to the BVerfG, there was no indication that LG Hannover would generally ignore Amazon’s right to procedural equality of arms in the future.

Dr. Simon Spangler, co-head of Oppenhoff’s antitrust practice, commented: “The decision of the Federal Constitutional Court has far-reaching implications for the private enforcement of competition law in Germany: It is expressly possible for the courts to issue interim injunctions without a hearing. There is no automatism, certainly not for competition law, in accordance with which the respondent, in this case Amazon, should certainly be heard before the interim injunction is issued.”

Mi.to. pharm was represented in the proceedings before the BVerfG by Dr. Simon Spangler (Antitrust, leader). In the proceedings before the LG Hannover, other members of the Oppenhoff team were Dr. Fee Mäder and Anika Hellmann (both in intellectual property law).

For many years, Oppenhoff has advised countless leading national and international companies in the retail and consumer goods sector in the areas of e-commerce and platform distribution.

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