The Heilbronn Regional Court has issued an interesting ruling, deciding that the IDO, which is well-known in circles of competition law warning letters, would be acting in abuse of rights.
The reason for this is that the IDO has not promised its members protection against warnings, but apparently it has lived up to its promise. At a minimum, according to the court, the association does not have a proper practice to monitor its own members.
Until the end of the oral proceedings, […] was unable to name any legal proceedings relating to a claim for injunctive relief against a member. The decisions of the Mönchengladbach and Osnabrück Regional Courts referred to by him as evidence of proceedings brought against members relate, as shown by the text excerpts, to claims for contractual penalties.
This was sufficient for the court to reject the IDO’s claim:
As a result, the counterclaimant’s actions constitute abuse in light of the circumstances surrounding the pre-trial and trial actions.
Of course, the decision is an individual case and it is likely that the IDO will appeal on the one hand, but also revise its practice on the other.
However, the IDO’s practice of often not issuing a warning to members, but instead providing the member concerned with appropriate instructions on how to remedy the violations, could come to an end. Moreover, as can be seen, it is often quite a good choice to think about the abuse of rights objection in the case of a warning. On my site you can find a lot of news about it.