The air for warning associations has become considerably thinner since December 2021. Anyone who has not made it into the so-called list of qualified trade associations as an association can no longer issue warnings. But what actually applies to old cease-and-desist orders obtained from such an association before the power to issue a warning was lost?
Why is?
Online retailers are threatened with annoying warnings not only from a competitor who is bothered by a violation of competition law.
Over the years, a large number of “warning associations” have established themselves on the market, some serious, others with a more or less dubious reputation. These associations have also been able to issue warnings under competition law more or less unchecked over the years. And plenty of it.
There was certainly a very large potential for abuse here, for example when the association was no longer concerned with preventing violations of competition, but rather with cease-and-desist declarations to generate massive income from contractual penalties. A considerable source of income for many a tight association budget.
Since December 2021, however, warning associations have had to meet much stricter requirements in order to be able to issue further warnings at all.
Only an association that has been entered in the so-called list of qualified trade associations (this can here be called up), has since been authorized to issue warnings.
Only those associations are included in this list that meet certain criteria that are intended to ensure a fair warning system. Black sheep among the associations are to be eliminated in this way.
Some well-known associations have not yet been entered in the above list. One can only speculate about the reasons…
For example, the “IDO interest group for legal and financial consulting of German online companies eV” from Leverkusen, which has become known over the years as a mass warning, is not yet represented in the above list.
We have already reported on this here.
But what about “legacy” in the form of court titles that warning associations had obtained before their authority to issue warnings expired? Even associations that are not included in the above list are still trying to put pressure on those who were warned at the time, as a recent decision by the OLG Hamm reveals.
Higher Regional Court Hamm: No enforcement of titles after loss of legitimacy to act
The OLG Hamm (decision of May 15, 2023, Az.: 4 W 32/22) now had to deal with this exciting question.
Many people who have been warned have decided in the past not to issue a cease-and-desist declaration in response to a warning from an association, but rather to have the court order them to cease and desist.
This decision is often made because the association can be deprived of the motivation to monitor the person who has been warned in the future.
In the event of a court conviction, a court order is usually issued at the instigation of the Abmahnverband, either in the form of a decision in the form of interim legal protection (temporary injunction) or quite regularly as a judgment.
With this court title, the court prohibits the person who has been warned from repeating the warned behavior in the future.
A threat of administrative order is issued as a sanction. First and foremost, this means that in the event of an infringement of the court prohibition, a fine of 5 to 250,000 euros will be imposed by the court.
However, neither the court nor the state then monitors compliance with the judicial prohibition. Rather, the Abmahnverband must be known as a cease-and-desist creditor in the event of a subsequent violation and enforce enforcement from the court title issued in its favor at the court in which the court proceedings were conducted. This is also called “submitting a request for punishment”.
But what is the legal situation now if an association previously authorized to issue warnings obtained a legal title against the warned dealer in around 2018, the association lost its authority to issue warnings as a result of the innovation in December 2021 and then from this title due to an infringement a fine against the want to have the person who has been warned arrested?
The Higher Regional Court of Hamm clearly rejected this request by a warning association.
First of all, the LG Essen refused to impose a fine on the person who had been warned, despite a clear violation of the court title.
The association lodged an immediate appeal against this decision with the Hamm Higher Regional Court – unsuccessfully:
The after § 793 ZPO admissible and otherwise admissible – immediate complaint of the creditor is unfounded. The district court rightly rejected the creditor’s request for administrative order.
The application for the determination of regulatory measures § 890 paragraph 1 sentence 1 ZPO is not allowed. The creditor does not have the necessary authority to file an application.
(…)
The authority to apply for an application for the determination of regulatory measures § 890 paragraph 1 sentence 1 ZPO the creditor is missing here at the latest since the entry into force of the new version of the Section 8 (3) UWG due to the law to strengthen fair competition of November 26th, 2020 on December 1st, 2021, because the creditor has not yet been included in the list of qualified business associations § 8b UWG has not been entered in the list of qualified institutions according to § 4 UKlaG. Just the rewrite of Section 8 (3) UWG by the Act to Strengthen Fair Competition proves the correctness of the view that the power to conduct litigation (the power to file applications) of business associations and qualified institutions must also continue to exist in the disciplinary proceedings: The opposite view, represented by the creditor in the present proceedings, would mean that in the case of a Even though the legislator ordered the restriction of the power of associations and institutions to conduct litigation, as implemented by the law to strengthen fair competition, associations and institutions affected by this change in the law and no longer entitled to issue warnings, make claims or take legal action still have a hardly meaningful “residual and shadowy existence” as “Administrator” old enforcement titles could lead. This undoubtedly does not correspond to the intention of the legislator and certainly not to the legal purpose of the law to strengthen fair competition of November 26th, 2020. The Federal Court of Justice already ruled in 1996 in the decision “Altsubmission I” (BGH, judgment of September 26, 1996 – I ZR 265/95 – [Altunterwerfung I], juris, para. 31 et seq.) – with regard to the substantive legal content of the provisions on the power of associations to prosecute violations of competition law – stated that the legal purpose of a legislator’s cessation of the substantive authority of associations requires that this change in the substantive legal position be made by the title debtor by way of an action to prevent enforcement § 767 ZPO can be asserted. Because the provisions governing the power of associations to prosecute antitrust violations have a dual nature as both substantive and procedural provisions, the title debtor is not reliant on the possibility of bringing an action § 767 ZPO limited, but can – like the debtor here – assert the creditor’s lapsed authority to file an application in the specific regulatory proceedings.
Before the Hamm Higher Regional Court, the Abmahnverband failed in its attempt to have the dealer who had been warned at the time “punished” by setting a fine.
Because it was not included in the list of qualified trade associations, it simply lacked the authority to apply.
The Higher Regional Court of Hamm allowed the appeal on points of law and the decision is not yet final. In all likelihood, the BGH will still have to deal with the matter.
Conclusion
A pretty clear gossip for the Abmahnverband!
Although the decision is not yet final: warning associations that did not make it onto the new list are finding it increasingly difficult to assert their supposed rights. That’s a good thing, because in this way dubious warning associations are consistently smoked out.
The decision of the Hamm Higher Regional Court shows once again how important it is not to react too quickly to a warning by submitting a cease-and-desist declaration and to get professional legal help in order to find the tactically best solution to the problem.
Especially in the case of warnings by associations, the judicial title is often, in the long term, the much better alternative to a declaration of discontinuance with a penalty.
In particular, dubious warning associations have “no desire” to monitor judicial titles and to apply for administrative measures in the event of possible violations.
Why? Probably simply because a fine to be imposed then goes 1:1 to the state treasury. In contrast to a contractual penalty for violating a cease and desist declaration, the association cannot fill its own pockets.
Have you received a warning from a warning association? Feel free to contact us.
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It is also interesting in this context whether an injunction can be revoked if the authority to issue a warning ceases to apply. In this context, the question continues to arise as to whether declarations of injunctive relief made in the past will become toothless tigers if the association loses its legitimacy on the creditor side.
There will probably be plenty of case law in the near future, especially because of a warning association that has become known to be particularly aggressive.
We’ll keep you up to date!
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