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Obligation to contract
- Verpflichtung zum Vertrag sichert die Bereitstellung von Grunddiensten und schützt vor Diskriminierung in wichtigen Bereichen.
- Die Flexibilität des Instruments ist entscheidend für die Anpassung an digitale und globale Entwicklungen in der Wirtschaft.
The obligation to contract, also known as the obligation to conclude a contract or the obligation to contract, is a legal obligation to conclude a contract with every interested party. This obligation represents an exception to the general freedom of contract and can be found in various areas of German law, particularly where there is a public interest in providing the general public with certain services.
Legal basis
1. civil law: Sections 826, 826 BGB (immorality and good faith) 2. antitrust law: Section 19 GWB (abuse of a dominant market position) 3. special laws: e.g. Energy Industry Act, Telecommunications Act 4. constitutional law: Indirectly derived from Art. 3 GG (principle of equality)
Application areas
1. services of general interest: energy and water supply, local public transport 2. telecommunications: basic telecommunications services 3. insurance: Compulsory insurance (e.g. motor vehicle liability) 4. banking: Current account for everyone 5. press distribution: As part of the press wholesale system 6. monopoly positions: In the case of market-dominating companies
Requirements for the obligation to contract
1. legal basis or judicial recognition 2. monopoly or dominant market position of the supplier 3. service of general interest or existential importance 4. unreasonableness for the customer to switch to other suppliers
Limits of the obligation to contract
1. capacity limits of the provider 2. unreasonableness for the provider (e.g. if the customer is unable to pay) 3. objectively justified reasons for a refusal 4. higher-ranking legal interests (e.g. security aspects)
Significance for the economy and society
1. ensuring the provision of basic services to the population 2. preventing discrimination and arbitrariness 3. balancing market imbalances 4. promoting competition in monopoly-like structures
Challenges and current developments
1. digitalization: adaptation to new business models and platform economies 2. globalization: cross-border applicability of the obligation to contract 3. data protection: tension between the obligation to contract and data protection rights 4. new technologies: Applicability to AI-controlled systems and autonomous decisions
Criticism and discussions
1. restriction of entrepreneurial freedom 2. possible inefficiencies due to compulsory contracts 3. demarcation difficulties in borderline cases 4. potential overregulation of certain markets
Case law and case studies
1) BGH ruling on current accounts for everyone (XI ZR 381/02) 2) ECJ rulings on network use in the energy sector 3) rulings on energy companies’ supply obligations 4) rulings in the area of press wholesaling
Future prospects
1. possible expansion to new areas (e.g. internet services, social media) 2. adaptation to technological developments and new business models 3. greater European harmonization of the obligation to contract 4. further development in the context of the platform economy and sharing economy
Conclusion
The obligation to contract is an important instrument for ensuring the provision of basic services and preventing discrimination in areas of major importance to the general public. It represents an encroachment on freedom of contract that is justified by overriding public interests. In a changing economic and technological landscape, the obligation to contract faces the challenge of reconciling traditional protective functions with the requirements of modern markets. Its future development will largely depend on how flexibly and adaptably this legal instrument can react to new social and economic realities.
