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BGH decides on abuse of rights with regard to Umwelthilfe

The First Civil Senate of the German Federal Court of Justice, which is responsible among other things for claims under the Unfair Competition Act, has ruled that an action for an injunction by Deutsche Umwelthilfe (German Environmental Aid) against a car dealership’s advertising that does not contain all the legally required consumer information on official fuel consumption and CO2 emissions cannot be countered with the objection of abuse of rights.

Facts:

The plaintiff is Deutsche Umwelthilfe e.V., an organization included in the list of qualified entities pursuant to Section 4 para. 1 UKlaG registered consumer association. The defendant operates a car dealership and advertised a new vehicle on its website. For information on official fuel consumption as well as CO2 emissions, the advertising referred to a guide available at the dealership. The plaintiff considers this to be a violation of the Regulation on Consumer Information on Fuel Consumption, CO2 Emissions and Electricity Consumption of New Passenger Cars (Passenger Car Energy Consumption Labeling Regulation) and has filed a claim against the defendant for injunctive relief. The defendant considers the action to be an abuse of rights and unfounded on the merits.

Previous process history:

The district court upheld the action. The defendant’s appeal against this decision was unsuccessful. The Court of Appeal assumed that the action was precluded by the defense of abuse of rights under Section 8 (8) of the German Civil Code. 4 UWG** does not prevent this. In particular, the surpluses achieved by the plaintiff with its market monitoring and their use as well as the amount of the remuneration paid to its managing directors did not suggest any abuse of rights, even in the overall view of all circumstances.

Decision of the Federal Court of Justice:

The Federal Court of Justice dismissed the defendant’s appeal, which was limited to questions of the admissibility of the action. The objection of abuse of rights from § 8 para. 4 sentence 1 UWG** was rightly denied by the court of appeal.

Surpluses from market monitoring activities and their use (also) for purposes other than the prosecution of competition violations in the interest of consumers are at least not an indication of an abusive assertion of claims as long as consumer protection through market monitoring is not merely pretended as the purpose of the association, but in fact only serves to generate income and thus to finance projects that do not serve consumer protection through the prosecution of competition violations. That is not the case here. If there are a large number of violations of a labeling or information obligation serving consumer protection, effective enforcement of consumer interests requires a corresponding large number of warnings and – if no cease-and-desist declarations are issued – legal proceedings. As long as there are no further circumstances, the number of warnings and cease-and-desist actions alone and the resulting surpluses cannot justify an accusation of abuse of rights. Otherwise, the plaintiff would be forced to discontinue its market monitoring after a certain number of warnings or contractual penalties had been obtained, as soon as it had covered its costs incurred in this respect.

Nor does the amount of the remuneration paid to the two managing directors indicate an intention to make a profit that would give rise to suspicion of abuse of rights. In addition to the expenses for an activity of the plaintiff in accordance with the articles of association, the salaries of the managing directors in each of the years 2015 and 2016 accounted for only a fraction of the plaintiff’s total annual expenses. This rules out the possibility that the plaintiff’s real purpose is to generate revenue for personnel costs rather than to pursue consumer interests.

The plaintiff’s preliminary statement of the amount in dispute of €30,000 for the action for an injunction does not constitute any indication of an abuse of rights in the pursuit of the claim, taking into account the generally inconsistent practice of the Higher Regional Courts. According to the findings of the Court of Appeal, the lump-sum warning fee demanded by the plaintiff covers the costs and does not indicate any abusive profit-making intent. The contributions to the plaintiff in the form of donations and sponsoring by Toyota also do not justify the assumption of an abuse of rights; according to the findings of the Court of Appeal, they did not lead to an unobjective unequal treatment of Toyota in the prosecution of environmental, consumer-relevant legal violations or in the campaigning of the plaintiff.

Marian Härtel

Marian Härtel

Marian Härtel is a lawyer and entrepreneur specializing in copyright law, competition law and IT/IP law, with a focus on games, esports, media and blockchain.

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