A person who has been warned can eliminate a presumed risk of repetition by making a serious declaration to cease and desist, ruled the German Higher Regional Court of Schleswig interpreting § 13 UWG. In the case of § 13a (2) UWG n. F., a simple cease and desist declaration is sufficient – without penalty clause.
Interpretation of § 13 UWG
This interesting case before the Higher Regional Court of Schleswig (OLG Schleswig 6 W 5/21) was about nothing less than the question of whether § 13 UWG abolishes the possibility of out-of-court dispute resolution.
Let us briefly recall: according to previous case law (including that of the German Federal Supreme Court (BGH)), a person who had been warned not only had to issue a cease and desist declaration, but also a promise to pay a contractual penalty in the event of a future repetition of the infringement. And because an infringer knew this, by refusing the penalty clause an infringer showed that there was still a risk of repetition (see Bornkamm loc. cit. para. 1.44 with further references).
However, the “Act to Strengthen Fair Competition” has been in force since December 2020 – we reported. The declared aim is to curb abusive warnings and to abolish the itinerant tribunal for legal infringements on the internet.
In the present case, which was decided before the Higher Regional Court of Schleswig (OLG Schleswig), the person being warned referred to the new Unfair Competition Act. The case concerned the offer of a lotion on eBay, in which the indication of a volume-related basic price and also a complete reference to the right of withdrawal were missing. Therefore, the warning notice was issued in January 2021 with a request for a cease-and-desist declaration. In February, the person warned issued a cease-and-desist declaration to the applicant – however, due to the faulty cancellation policy and the missing basic price information, but without a penalty clause, with reference to § 13a (1), (2) UWG. Only with regard to the lack of registration under § 24 of the German Packaging Act (VerpackG) did he also promise a contractual penalty.
Thereupon, the applicant applied for an interim injunction because of the lack of indication of the basic price and the incomplete instruction on the right of withdrawal. However, the civil chamber – the Chamber for Commercial Matters III – rejected the application. The presumed danger of repetition had been eliminated by the declaration to cease and desist, even without penalty clause. If – as in this case – the agreement of a contractual penalty was excluded under § 13a (2) UWG, as amended, it was contrary to the meaning and purpose of § 13 (1) UWG, if the person warned had no possibility to eliminate the presumed danger of repetition by a serious declaration to cease and desist.
The applicant’s immediate appeal is directed against this; the legislator had intended § 13 UWG only to prevent warnings to generate claims for reimbursement of expenses or contractual penalties, he argued. The legislature had been aware that it was abolishing a possibility for out-of-court dispute resolution with the legislative solution it had chosen. The Regional Court submitted this complaint to the Higher Regional Court for a decision.
OLG Schleswig dismissed the complaint
The OLG Schleswig dismissed the complaint in its entirety, finding that the application for an interim injunction had been rightly rejected. The OLG ruled that the danger of repetition required for a claim for injunctive relief pursuant to § 8 (1) UWG was lacking in the present case, which, moreover, must always be serious and tangible.
Under the conditions set out in § 13a (2) UWG, as amended, which are undoubtedly present here, the agreement of a contractual penalty is excluded.
No fundamental abolition of penalty clause
However, the OLG Schleswig emphasised that this was not a fundamental abolition of out-of-court dispute resolution and penalty-based cease and desist declarations. According to the court, the legislator had in principle retained the system of out-of-court settlement of disputes by means of a warning letter and a cease and desist declaration with penalty clause (§ 13 (1) UWG n. F.). However, the OLG explained, it had subjected this right of warning and submission to a careful reorganisation. In particular, the “reasonable contractual penalty” mentioned in § 13 para. 1 UWG n. F. was concretised for the first time in § 13 a UWG n. F..
Accordingly, the provision in § 13 para. 1 UWG in the cases of § 13a para. 2 UWG n. F. was to be understood in such a way that the creditor should warn the debtor before initiating legal proceedings and give him the opportunity to settle the dispute by submitting a cease and desist declaration.
A cease and desist declaration without a penalty clause is therefore sufficient to eliminate the risk of repetition if the requirements of § 13a (2) UWG n. F. are met, was ruled by the OLG Schleswig.
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