reforma abmahnung konkurencji
Act against the abuse of admonitions in Germany.
The federal government has adopted a bill that provides for a number of measures to strengthen fair competition against consumers and other market participants. The purpose of these measures is to prevent the abuse of warnings, ie warnings issued primarily to obtain cash benefits and contractual penalties. The bill emphasizes that the warnings 'are used to quickly and inexpensively pursue injunction claims and to avoid costly and possibly lengthy court proceedings.' However, they should "be in the interest of complying with competition law and enforcement, in particular, GTC and consumer law and not generate fees and contractual penalties"; The procedure for such warnings about abuses is as follows: e.g. in the imprint, in the AGB or in explanations regarding data security), which then become the basis for a written reminder, which usually includes a request to sign an agreement providing for a contractual penalty in the event of a further breach.
In order to protect entrepreneurs against such abuses, the act on suspicious business practices was passed in October 2013. Despite these regulations, abuses still persist.
The draft of the new act mainly provides for changes to the Act on Combating Unfair Competition, the Act on Court Orders and the Act on Court Fees.
The most important measures are:
1. Higher requirements for issuing a reminder2. Limiting the financial benefits when issuing warnings,
3. Facilitations for entities receiving a warning in pursuing counterclaims
4. Limitation of the "flying" jurisdiction of the courts.
Higher requirements for issuing a reminder
The UWG now states that any competitor can rebuke others only if it is actually "selling or acquiring goods or services to a significant extent, and not just occasionally". This is to counteract companies that operate on the market only seemingly, but primarily aimed at sending warnings to other entities. Under the current legal situation, any trader may request an order to cease anti-competitive activities. Earlier, it was sufficient for the warning website to offer selected goods on the Internet. Now he has to prove that he is constantly distributing goods or services and is not just an occasional activity. Industry associations will also be entitled to bring claims, but only if they are included in the list of the so-called qualified industry associations in accordance with the bill. The Federal Office of Justice will check whether the association is actually able to fulfill its statutory duties in pursuing commercial or independent professional interests on the basis of its previous activities as well as human, material and financial resources.
This is to prevent the existence of such associations, which are set up solely for the purpose of alerting and enforcing cash benefits.
The basic proposal of the bill is to exclude the possibility of reimbursement of costs in the event of particularly gross violations of information obligations on the Internet, as well as in the case of violations of data protection by micro-enterprises, small enterprises and comparable associations.
The draft act also limits the amount of contractual penalties in cases of minor breaches: "Contractual penalties may not exceed EUR 1,000 if, due to their nature, scope and consequences of the breach, adversely affect the interests of consumers, competitors and other economic entities only to a slight extent".
In addition, the draft provides for facilities for entities receiving a warning in pursuing counterclaims. In some cases, there will be a presumption of abuse in pursuing claims by the warning person.
In addition, alerts must contain clearly defined information such as the name or company of the person issuing the alert, the amount and the calculation of the reimbursement claim. If the person issuing the alert does not meet these requirements, he / she is not entitled to a refund.
He also has the right to do so if the alert is unfounded or does not contain the necessary information.
The bill also provides for the limitation of the so-called flying jurisdiction of the local court. The place of jurisdiction is in principle the place of residence of the debtor, ie the place of residence of the party who has been reminded of this. The exception, however, is UWG, where the place of the act is appropriate, which can be difficult to determine in the case of online activities. This gives warrants the opportunity to choose a court in their vicinity. For defendants, having a case heard by a court remote from their place of residence may be disadvantageous and unanimously lead to them giving up their defense against suing and signing the required agreement.
The draft must first be submitted to the Bundesrat. Consultations are expected to take place in the next few months. The Bundesrat may issue an opinion on a bill on which the government may in turn make its views known in writing. The chancellor then forwards the bill and his statement to the Bundestag. The duration of the entire legislative process also depends on how long detailed consultations will take.