Facts
The case concerns a dispute between Hans Greiner, a mineral water retailer, and Weissenburg-Mineralthermen AG, a mineral water producer. Greiner requested that Weissenburg-Mineralthermen AG deliver mineral water to him under depositary conditions, which the company refused due to an agreement with the mineral water retailers' association (MITA). Greiner then referred the matter to the competition commission, which sent him to the civil court.
The court of first instance dismissed Greiner's claim, considering that Weissenburg-Mineralthermen AG was not a cartel and therefore could not be held liable for the alleged violation. Greiner appealed to the federal court, which annulled the first-instance decision and sent the case back for a new decision.
Considerations
The federal court considered that the standing to defend of an individual cartel member must be examined in light of the provisions of substantive law, in this case competition law. It estimated that Article 6 of the CartA allows the injured party to request the cessation of the violation and compensation for the damage, and that this request can be directed against an individual member of the cartel.
The court also examined the issue of the obligation to deliver and considered that, even if the cartel is at issue, an individual member of the cartel can be held liable for the alleged violation. It estimated that Article 6 paragraph 2 CartA does not limit the possibilities of…