This post is also available in: Nederlands (Dutch)
August 2, 2021
All Kennel Clubs as well as the Dutch Raad van Beheer and the FCI are violating the anti-trust law by not accepting the pedigrees of other organizations. The pedigrees of other organizations, if they meet the same conditions, according to the anti-trust law, should be accepted by the national kennel clubs. In short, if legally several pedigree organizations per country should be possible, are not also several (whether or not FCI) kennel clubs per country possible?
The German kennel club VDH has a damage of € 500,000 due to violation of the European anti-trust law. A law that is also violated by all other European FCI kennel clubs. This has become visible by a judgment of the Oberlandesgericht in Düsseldorf on July 8 (link to judgment attached). Hopefully the Boards of the Kennel Clubs have a good board liability insurance because in the appeal paragraphs in the statutes of the FCI and VDH were even declared null and void due to the conflict with the European anti-trust law.
This case was instigated and won by the German SV (Schäferhund Verein) as initiator of the WUSV (World Union of Clubs for German Shepherd Dogs). The WUSV has 95 affiliated clubs in 89 countries of which 60 clubs are represented by nationwide FCI affiliated Kennel Clubs. However 35 clubs also kept pedigrees by Kennel Clubs not affiliated to the FCI. There was an agreement on this with the VDH and the FCI which was unilaterally terminated by the VDH in 2018. A temporary injunction before the court in Dortmund by the VDH to prohibit the SV from accepting pedigrees from non-FCI organizations was rejected by the judge with the argument that the VDH was acting in violation with the European anti-trust law. The VDH appealed against this ruling. The ‘Oberlandesgericht’ in Düsseldorf, however, upheld the judgement of the Dortmund court and went even further.
A declaration of ‘null and void’ means that one has to act as if these paragraphs do not exist or have never existed. The fact that the kennel clubs do not accept pedigrees from other organizations than those affiliated to the FCI, even if they comply with the same principles and rules, the judge considers unacceptable and in violation of Article 102 (see explanation under text). Due to the power and monopoly position of the kennel clubs, this was unacceptable to the court. An appeal is no longer possible and the verdict is final. Given the fact that it is European legislation, the German Oberlandesgericht has obliged both the VDH and the FCI to amend the statutes in the short term under pressure of high fines. Also the kennel clubs of other countries will have to adapt their statutes like the FCI if they do not want to face the same lawsuit.
A decisive finding by the court was that both the FCI and the national Kennel Clubs as well as the Breed Clubs are seen as ‘corporations’ in the context of the anti-trust Act. After all, they are engaged in promoting and disseminating their dog breed, drawing up breeding guidelines, publicizing this and maintaining an internationally recognized stud book. Organizing and participating in events, organizing club shows, etc. The services, including the stud book and the pedigree certificates issued on the basis of it, also include the granting of monetary benefits. In short, the value of an FCI pedigree breed dog increases. It is irrelevant that the members are private persons and/or are or are not engaged in breeding and trading on a commercial basis.
This verdict calls into question many principles in the statutes of the Kennel Clubs. Perhaps the first and most important is that multiple pedigree-registration organisations per country should be possible. The Kennel Clubs lost their monopoly on this and are now obliged to accept the pedigrees of other organizations if they meet with the same conditions. Of course they may not carry the FCI stamp but they may contain the text that the pedigrees meet the requirements of the FCI / national Kennel Club. This makes them equivalent and a purebred dog should also be able to be transferred from such a non-FCI studbook to a FCI studbook.
The big question on everyone’s lips is if the dog shows now falling under the national Kennel Clubs, should also be accessible to purebred dogs with a non-FCI pedigree?
A next question that arises is whether breed clubs that are affiliated with the national kennel club can now also register their own pedigrees and whether the kennel clubs can do anything against this without violating the anti-trust law?
The last question of course is whether the country principle of pedigree registration has been broken by this. Can a pedigree dog living in the Netherlands be registered in a pedigree book in another EU country? This opens the possibility for pedigrees per breed and that supranationally.
All burning questions.
In short this court judgement will have many consequences for the entire cynological world dominated by the Kennel Clubs with as most important that the monopoly position of the national Kennel Clubs will disappear and ‘competition’ should be possible.
Foundation Ras en Recht (Justice for Pedigreedogs)
Edwin Meyer Viol
Attached is the ruling of the Oberlandesgericht in Düsseldorf on July 8, 2021
Attached press release WUSV
‘Article 102 of the Treaty on the Functioning of the European Union (formerly Article 82 of the Treaty establishing the European Community) aims to prevent companies in a dominant position in a market from abusing that position. Its main role is to regulate monopolies, which restrict competition in the private sector and produce worse outcomes for consumers and society. It is, after Article 101, the second key provision in TFEU competition law. The text of Article 102 states the following,
‘It shall be incompatible with the internal market and prohibited, in so far as it may affect trade between Member States, for one or more undertakings to abuse a dominant position within the internal market or in a substantial part of it’.
Such abuse may consist, in particular, in:
(a) directly or indirectly imposing unfair purchase or selling prices or other unfair contractual conditions;
(b) limiting production, markets or technical development to the prejudice of consumers
(c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage
(d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts“.
The exclusive right of one FCI studbook by the Kennel Club per country is an additional performance and is not related to the expected performance or the subject of the agreement namely the issuing of pedigrees. In short, an organization that maintains pedigrees that meet the same requirements as the FCI pedigree should be accepted by the FCI, Kennel Clubs and Breed Clubs.