Preliminary injunction of the Regional Court of Hanover for abuse of a market-dominating position: Amazon’s constitutional complaint has not been successful

The constitutional complaint lodged by the Luxembourg Amazon Services Europe S.à r.l. against the high-profile decision of the Regional Court [Landgericht, LG] of Hanover of 22 July 2021 (file no. 25 O 221/21) concerning an alleged violation of the principle of procedural equality of arms has been unsuccessful: the German Federal Constitutional Court [Bundesverfassungsgericht, BVerfG] did not accept the constitutional complaint for decision.

Background: Oppenhoff had procured on behalf of mi.to. pharm an interim injunction before the LG Hanover against Amazon for an abusive use of its market-dominating position, which was issued in accordance with the application and without a prior oral hearing. Amazon had blocked mi.to. pharm’s seller’s account with a general reference to a violation of the conditions of use, without providing any further reasons.

The LG Hanover has considered Amazon’s behaviour as an abusive use of its market-dominating position. Amazon subsequently lodged a constitutional complaint: it was of the opinion that its right (equivalent to a fundamental right) to a procedural equality of arms had been infringed, as the Regional Court – according to Amazon’s view - had conducted one-sided “secret proceedings” and had not granted it a fair hearing.

The BVerfG did not share this opinion, in particular since Amazon had not appealed against the preliminary injunction at the time. Moreover, according to the BVerfG, there was no indication that the LG Hanover would generally disregard Amazon’s right to a procedural equality of arms in the future.

Dr. Simon Spangler, Co-Head of Oppenhoff’s antitrust practice, commented: “The Federal Constitutional Court’s decision has far-reaching significance for the private enforcement in antitrust law in Germany: it is expressly possible for courts to issue interim injunctions without an oral hearing. There is no automatism, certainly not for antitrust law, pursuant to which the respondent, in this case Amazon, would definitely have to be heard before the interim injunction is issued.”

Mi.to. pharm was represented in the proceedings before the BVerfG by Dr. Simon Spangler (Antitrust, lead partner). In the proceedings before the LG Hanover, further Oppenhoff team members were Dr. Fee Mäder and Anika Hellmann (both Intellectual Property Law).

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

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