The Federal Court of Justice has ruled that the sale of baked goods in bakery branches with café operations on Sundays is also permitted outside the closing hours.

The local defendant sells bread, baked goods and confectionery in its stores and sold bread and unoccupied breads and unoccupied breads in two branches on Sundays over a period of more than three hours each. At another bakery sales point, a pretzel, unoccupied bread and a loaf of bread were sold on a Pentecost Monday.

The Head Office for the Suppression of Unfair Competition therefore claimed the defendant in accordance with Paragraph 3a of the UWG, because it violated Paragraph 3 sentence 1 no. 1 of the Law on the Closing of Shops and Section 1(1) of the 1 No. 2 and Para. 2 of the Ordinance on the Sale of Certain Goods on Sundays and Public Holidays.

The district court had dismissed the action. The applicant’s appeal was unsuccessful. The Bundesgerichtshof (Federal Court of Justice) rejected the applicant’s appeal.

With regard to the Sunday sale of baked goods in the two branches operated by the defendant, the Bundesgerichtshof (Federal Court of Appeal) upheld the Court of Appeal’s assessment that those sales were in accordance with Paragraph 7(7) of the Court of Appeal. 2 No. 1 of the Restaurant Act.

Those branches are catering services within the meaning of Paragraph 1(1) of the 1 of the Restaurant Act, because the defendant also operates cafés there, in which it administers drinks and food for consumption on the spot. The application of the restaurant law does not preclude the defendant from operating a bakery sales outlet in the same room next to a café. Similarly, it is not important that it provides the food and drinks in the café for self-service.

The rolls and breads administered by the defendant in the café are likely to be 2 No. 1 of the Restaurant Act outside the lockout periods under the law on restaurant law and without any commitment to the statutory provisions on the closing of shops in street sales. For example, the Federal Court of Justice agrees with the Court of Appeal that rolls and breads are prepared foods, i.e. food made ready for eating by baking.

The fact that the defendant offers the bread in the café in a cut form, but sells whole loaves of bread in street sales, and that the guests of the café sprinkle or occupy the bread slices themselves, does not change that assessment. Furthermore, since the admissibility of a street sale does not presuppose that the food has been prepared in the restaurant, it is not the place where the rolls and breads were baked. It is true that an admissible levy for immediate consumption exists only if the operator of the restaurant is entitled to assume that the goods delivered are essentially purchased for immediate consumption. However, the defendant was entitled to proceed from this in view of the type and quantity of baked goods delivered in the contested sales.

Marian Härtel ist spezialisiert auf die Rechtsgebiete Wettbewerbsrecht, Urheberrecht und IT/IP Recht und hat seinen Schwerpunkt im Bereich Computerspiele, Esport, Marketing und Streamer/Influencer. Er betreut Startups im Aufbau, begleitet diese bei sämtlichen Rechtsproblemen und unterstützt sie im Business Development.

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