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29 August 2021
From the judgement of the Oberlandesgericht in Düsseldorf in which the request of the FCI and DHV to prohibit the SV (Schäferverein/German Shepherd Dog Association) to register dogs from non-FCI studbooks in the FCI studbook of the SV was rejected. This request was filed by the FCI at the Landesgericht Dortmund.
In spite of the fact that the FCI would like to believe that it only concerns the German Shepherd Association, the ruling is entirely based on European laws and regulations that apply to all countries of the EU as well as Switzerland and Norway.
In short, any decent pedigree association that uses the same requirements for registration in their studbook as the FCI (with the exception of being registered in an FCI pedigree book for both parent dogs), must be able to register them in a FCI studbook.
The monopoly of the FCI is broken.
The FCI must accept other studbooks and register dogs from these studbooks in the FCI studbook and treat them equally!
From the judgment of the Oberlandesgericht in Düsseldorf:
‘After an oral hearing, the regional court rejected the request for an interim measure. In support of its reasoning, the Court specified that the rules of association law on which the plaintiff bases her claim are contrary to cartel law. They are contrary to Article 101(1) TFEU and § 1 GWB as they have the object of appreciably restricting competition in the dog breeding market. The failure to include dogs bred outside the FCI in the defendant’s studbook, even though such dogs are bred to the same strict requirements, is detrimental to breeders outside the FCI and to all breeders’ associations not affiliated to the FCI. The regulations in question were also not necessary for the proper functioning of the plaintiff and the FCI and for the attainment of the goal of ensuring the breeding of “functionally and hereditarily sound, purebred dogs of good character”, as in addition to proof of parentage, a breeding suitability test of the individual dog was a prerequisite for breeding authorisation. In addition, the rules were also contrary to cartel law under Article 102 TFEU or §§ 19, 20 GWSB. The plaintiff (FCI/DHV) has a dominant position on the German market and abuses it, since its conduct influences the sales of breeders who are not members of the FCI and the formal reference to proof of three generations bred within the FCI is not an appropriate distinguishing criterion. Moreover, there are indications that the defendant (SV), which has a market share of more than 90 % in Germany, is encouraged by the required conduct on its part to act contrary to cartel law within the meaning of § 21(21) GWB’.
And further on in the judgment it states:
‘The aforementioned regulations (contained in the Articles of Association and Rules of Procedure) violate the cartel prohibition under S1 GWB, Art. 101(1) TFEU, insofar as they prohibit the defendant from including non-VDH/FCI dogs in its studbook; a prohibition that violates the cartel law also cannot be justified on the basis of a duty of association loyalty.’
What do we read from this?
- Articles 101 and 102 VWEU are articles of European regulation and stand above national laws and regulations and are therefore also used in national case law, as this judgment shows.
- The FCI’s claim to prohibit the registration of non FCI pedigrees in FCI studbooks has been rejected. In short, it should be possible when the dogs are registered with a studbook that meets the FCI requirements for a studbook registration, these dogs with non-FCI pedigrees should be able to be registered in the FCI studbooks.
- The FCI encourages the national kennel clubs to act contrary to the law! In short, the directors of the FCI and affiliated kennel clubs are also punishable by this. Especially after this verdict.
- The association law that includes a duty of loyalty towards the FCI and national FCI kennel clubs is null and void because it is contrary to the anti-trust law. Therefore, the FCI and the affiliated kennel clubs can no longer lay claim to this in the event of disputes in this matter.
In short, no matter how you look at it, the FCI studbooks have to register pedigrees from non FCI studbooks that meet the same requirements as the FCI pedigrees.
The monopoly position of the FCI is hereby broken.
The space is created for new competing studbook associations with their own rules
Edwin Meyer Viol