Soda-Club GmbH, Wiesbaden (“Soda-Club“) may not use its dominant position abusively. Soda-Club had prevented competing suppliers from refilling Co² cartridges for water carbonating machines by claiming its ownership of the cartridges.

In February 2006 the Bundeskartellamt prohibited this conduct. Soda-Club opposed the Bundeskartellamt’s immediately enforceable decision by applying to the Düsseldorf Higher Regional Court for interim measures. In provisional proceedings the court has now confirmed the Bundeskartellamt’s decision in all material respects. Soda-Club is dominant in the market for refilling CO² cartridges. Hindering competitors from refilling CO² cartridges represents an abuse of this dominant position. By this conduct Soda-Club prevents consumers from taking advantage of alternative refilling possibilities. Only the obligation to point out on labels on the company’s own cartridges that it is admissible to have them refilled by competitors was seen by the Higher Regional Court as a disproportionate measure.

Although Soda-Club can still appeal against the Higher Regional Court’s decision to the Federal Supreme Court, the Higher Regional Court’s decision implies that the numerous small and medium-sized bottling plants can now start to compete with Soda-Club and refill all cartridges circulating in the market.