The First Civil Senate of the Federal Court of Justice, responsible inter alia for claims arising from the Act against Unfair Competition, has ruled that an injunctive relief action brought by Deutsche Umwelthilfe (Environmental Action Germany) against the advertisement of a car dealership, which did not contain all legally required consumer information on official fuel consumption and CO2 emissions, cannot be countered by the objection of abuse of rights.
Facts of the case:
The plaintiff is Deutsche Umwelthilfe e.V., a consumer association registered in the list of qualified entities under Section 4 (1) of the Injunctions Act (UKlaG). The defendant operates a car dealership and advertised a new vehicle on its website. For information on official fuel consumption and CO2 emissions, the advertisement referred to a guide available at the dealership. The plaintiff considers this a violation of the Regulation on Consumer Information on Fuel Consumption, CO2 Emissions, and Electricity Consumption of New Passenger Cars (Passenger Car Energy Consumption Labeling Regulation) and has sought an injunction against the defendant. The defendant deems the lawsuit an abuse of rights and unfounded on its merits.
Previous course of proceedings:
The Regional Court granted the claim. The defendant's appeal against this decision was unsuccessful. The appellate court ruled that the objection of abuse of rights under Section 8 (4) of the Act Against Unfair Competition (UWG) did not preclude the claim. Specifically, the surpluses generated by the plaintiff's market surveillance and their utilization, as well as the remuneration paid to its managing directors, even when viewed in the totality of all circumstances, did not indicate abusive conduct.
Decision of the Federal Court of Justice:
The Federal Court of Justice rejected the defendant's appeal, which was limited to questions concerning the admissibility of the action. The appellate court rightly dismissed the objection of abuse of rights under Section 8 (4) sentence 1 of the Act Against Unfair Competition (UWG).
Surpluses generated from market surveillance activities and their use (also) for purposes other than the pursuit of competition infringements in the consumer interest do not, in any case, indicate an abusive assertion of claims, as long as consumer protection through market surveillance is not merely a pretextual association purpose, but actually serves only to generate income and thereby finance projects that do not serve consumer protection through the pursuit of competition infringements. This is not the case here. If there are numerous violations of a labeling or information obligation serving consumer protection, effective enforcement of consumer interests requires a corresponding multitude of warning letters and – if no cease and desist declarations are submitted – legal proceedings. Therefore, unless further circumstances arise, the mere number of warning letters and injunction lawsuits, as well as the surpluses generated thereby, cannot substantiate the accusation of abuse of rights. Otherwise, the plaintiff would be forced to cease its market surveillance after a certain number of warning letters or contractual penalties obtained, once its associated costs had been covered.
An intent to generate profit, which would substantiate the suspicion of abuse of rights, also does not arise from the remuneration paid to the two managing directors. In addition to the expenses for the plaintiff's statutory activities, the managing directors' salaries in 2015 and 2016 each constituted only a fraction of the plaintiff's total annual expenditures. This precludes the possibility that the plaintiff's actual purpose is to generate income for personnel costs rather than to pursue consumer interests.
The plaintiff's provisional statement of claim value of €30,000 for the injunction lawsuit, considering the generally inconsistent jurisprudence of the Higher Regional Courts, does not indicate an abusive pursuit of claims. According to the findings of the appellate court, the flat-rate warning letter fee demanded by the plaintiff covers costs and does not reveal an abusive intent to generate profit. Furthermore, the donations and sponsorship from Toyota to the plaintiff do not justify the assumption of abuse of rights; according to the appellate court's findings, they did not lead to an inappropriate unequal treatment of Toyota in the pursuit of environmental, consumer-relevant legal infringements or in the plaintiff's campaign management.
Judgment of the Federal Court of Justice of July 4, 2019 – I ZR 149/18
Lower Courts:
Regional Court Stuttgart – Judgment of December 13, 2016 – 41 O 31/16 KfH –
Higher Regional Court Stuttgart – Judgment of august 2, 2018 – 2 U 165/16 –
Press Release of the Federal Court of Justice of July 4, 2019
