Bundestag deals with abuse of warnings

The German government’s draft law to strengthen fair competition(see my article here) will be discussed by the Committee on Legal Affairs and Consumer Protection in a public hearing on Wednesday, October 23, 2019.

The invited experts are also expected to comment on a draft bill from the AfD parliamentary group on “Combating the abuse of warning letters”, a motion from the FDP entitled “Measures for more fairness in warning letters” and the motion “Warning letters – transparency and legal certainty” to express their views. The meeting, chaired by Stephan Brandner (AfD), will begin at 2 p.m. in conference room 2.600 of the Paul Löbe House in Berlin.

According to the Federal Government, its draft law combines several legislative measures: in order to curb abusive warnings, it sees higher requirements for the power to assert entitlements, the reduction of financial incentives for warnings, more transparency and simplified ways of asserting counterclaims. In order to strengthen competition in the case of form-based spare parts for complex products such as automobiles, a repair clause is to be introduced which restricts the design right for visible spare parts for repair purposes and thus opens up the market.

The background to the bill has recently increased the indications that, despite the legal provisions, abusive warnings are still being issued. There is an unacceptable maladministration when warnings are issued primarily to achieve fees and contractual penalties, the draft states.

AfD bill
The AfD criticises the Federal Government’s proposal, which, among other things, provides for the far-reaching abolition of the “flying jurisdiction” and the aggravation of the abuse by inserting indeterminate legal terms, but is not suitable to address the problem. to solve. In part, the AfD considers the proposed measures to be harmful because they would jeopardize the undisputed benefits of the system of private law enforcement in fairness law and consumer protection.

The aim of the AfD’s amendment to the law is therefore to effectively prevent abusive warnings without jeopardising the advantages of the system of private enforcement of consumer protection and fair competition in Germany. The far-reaching abolition of the “flying jurisdiction”, as provided for in the draft law of the Federal Government, is therefore prohibited, since there is no benefit for this in terms of avoiding abusive warnings. An effective fight against the abuse of warnings presupposes the safe distinction between a legitimate warning and a dubious (‘abusive’) warning. No distinguishing criterion is the justification (reason) of a warning.

Unserious (“abusive”) warnings are regularly justified, since the warnings would shy away from the risk of being subject to the law.

Fdp motion
The FDP Group wants to achieve greater fairness in warnings in connection with competition law. The Bundestag should ask the Federal Government to submit a corresponding draft law, its motion states. The law should provide, inter alia, that for the first warning, except in the case of serious, complex or time-critical infringements – neither a competitor nor a warning association can claim warning costs, provided that the warned person was not aware of the infringement and immediately put an end to it.

The statement of reasons states that the warning has proved to be a valid instrument for the out-of-court enforcement of infringements of competition law. In practice, however, there would be significant problems, particularly for small and medium-sized enterprises such as start-ups, craft enterprises, small online shops or small businesses, which are only slightly commercially active. The reason for this was the disproportionately high warning costs, which already threatened in the event of minor infringements. They are often the real motivation of the warning. The Federal Council’s draft law to strengthen fair competition does not yet go far enough for MEPs.

Greens motion
Abusive warnings are also the subject of the motion by the Alliance 90/Greens Group. After that, the Bundestag is to ask the Federal Government to submit a draft law that ensures transparency and legal certainty. The abusive assertion of claims should be defined more precisely and
warned parties should be empowered to make informed decisions, MEPs demand. At the same time, the draft should provide the possibility of having a declaration of injunction subject to criminal penalties reviewed in court and of being able to recover excessive warning costs retrospectively.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.