abuse of dominance
noun · Missbrauch einer marktbeherrschenden Stellung
German law prohibits the abuse of a dominant position, §§ 18, 19 GWB, and holding the position is not itself unlawful, only its abusive exploitation is. The German provisions go further than Art. 102 AEUV in places, catching relative market power towards dependent undertakings and, since the 2021 reform, undertakings of paramount cross-market significance.
Which translation, when
Why
Abuse of dominance is the Missbrauch einer marktbeherrschenden Stellung, and the German regime rewards a careful translation because it is not simply Art. 102 AEUV in German words. The starting point is the position: § 18 GWB defines when an undertaking is marktbeherrschend, working from the relevant product and geographic market and asking whether the undertaking faces no or no substantial competition or holds a paramount market position, with market shares, financial strength, access to supplies and barriers to entry among the factors and with statutory presumptions attaching to defined shares. Holding such a position is entirely lawful; German competition law, like the European, prohibits only its abuse. Section 19 GWB then forbids the abusive exploitation of the position, and practice sorts the conduct into exploitative abuse, where the dominant undertaking extracts prices or terms it could not obtain under competition, and exclusionary abuse, where it keeps competitors out by refusing supply, by squeezing margins, by discriminating without objective justification or by pricing below cost. Two German additions must not be lost in translation. The first is relative market power: an undertaking need not be dominant on a market at all if smaller firms depend on it as supplier or customer with no reasonable alternative, and the prohibition reaches that relationship. The second came with the 2021 reform, which introduced § 19a GWB, a two-stage instrument aimed at large digital platforms: the Bundeskartellamt first determines by decision that an undertaking active to a significant extent on multi-sided markets has paramount significance across markets, a finding limited to five years after it becomes final, and may then prohibit the undertaking from defined conduct, which has been applied to several platform companies since. So a text that renders the German provisions as though they mirrored Art. 102 AEUV loses precisely what makes German practice distinctive.
Typical mistakes
- Dominance itself is lawful and only its abuse is prohibited, so wording that treats a strong market position as an infringement misstates the regime.
- German law also catches relative market power towards dependent undertakings, so equating the German test with Art. 102 AEUV narrows it.
- Exploitative and exclusionary abuse are different categories, so merging them loses the distinction on which the analysis turns.
What matters
Assessing a supply refusal by a large German customer: the analysis should ask first whether § 18 GWB dominance or relative market power applies, then classify the conduct as exploitative or exclusionary abuse under § 19 GWB.
What the machine misses
A machine rendering of abuse of dominance gives Missbrauch der Dominanz or Marktdominanz, words German competition law does not use, and the institute is the Missbrauch einer marktbeherrschenden Stellung under §§ 18, 19 GWB, which additionally reaches relative market power and, since 2021, undertakings of paramount cross-market significance; the calque also hides that holding the position is lawful.
Examples
| abuse of a dominant position | Missbrauch einer marktbeherrschenden Stellung |
| the relevant market | der relevante Markt |
| refusal to supply | Lieferverweigerung |
| relative market power | relative Marktmacht |