Pharmaceutical manufacturer wins with Oppenhoff, Amazon’s constitutional complaint fails

–

Mitopharm from Wolfenbüttel in Lower Saxony had accused Amazon of abusing a dominant position. The preliminary injunction had been issued as requested and without a prior oral hearing. Amazon had previously blocked Mitopharm’s seller account with a blanket reference to a violation of the terms of use.

Oral negotiation is not necessary

After that, the Luxembourg Amazon Services Europe had filed a constitutional complaint about an alleged violation of the procedural equality of arms. However, the Federal Constitutional Court (BVerfG) has now not accepted this constitutional complaint for a decision.

This current Karlsruhe decision may have far-reaching significance for private enforcement of antitrust law in Germany: In summary proceedings, specialist courts expressly have the option of issuing an injunction without a hearing.

In the ARD magazine Plusminus, Prof. Dr. Thomas Höppner, Berlin partner of the law firm Hausfeld, that Amazon wanted to avoid setting a precedent with the constitutional complaint. It is probably also unpleasant for the group that the designation of a dominant position used before the LG Hanover now remains in place.

Representative Mitopharm
Oppenhoff & Partner (Frankfurt): Dr. Simon Spangler (lead management; antitrust law), Dr. fairy girls; Associate: Anika Hellmann (both IP; both Cologne)

Representative Amazon Services Europe
Hengeler Mueller – known from the market

BVerfG, 2nd Chamber of the First Senate
Prof. Dr. Andreas Paulus (judge), Dr. Josef Christ (judge), Prof. Dr. Ines Haertel (judge)

background: Amazon is notoriously tight-lipped about its legal advisors. It is known in the market that Hengeler Mueller also advises the group in other antitrust cases, for example in investigations by the Federal Cartel Office under the new paragraph 19a of the Cartel Act (GWB). Hogan Lovells can often be seen as a consultant in litigation cases, for example in April a Hamburg team from the law firm worked for Amazon against Swatch.

Since this year, Spangler, together with Dr. Daniel Dohrn Oppenhoff’s antitrust practice. Even before the LG decision of 2021, he had relationships with Dermaroller, a subsidiary of Mitopharma.

Copyright Teaserbild: Aleksei/Adobe Stock

–