The first civil senate of the Federal Court of Justice, which is of the Federal Court of Justice, which is also responsible for claims under the ruled that an action for injunctive relief brought by Deutsche Umwelthilfe against the advertising of a car dealership which did not include all the information required by law on the official fuel consumption official fuel consumption and CO2 emissions, cannot be challenged on the grounds of of abuse of rights can be raised against it.
Facts:
The plaintiff is Deutsche Umwelthilfe e.V., a consumer association registered in the list of qualified entities pursuant to § 4 (1) UKlaG. The defendant operates a car dealership and advertised a new vehicle on its website. For information on the official fuel consumption and CO2 emissions, the advertisement referred to a guide available at the car dealership. The plaintiff considered this to be a violation of the Regulation on Consumer Information on Fuel Consumption, CO2 Emissions and Electricity Consumption of New Passenger Cars (Passenger Car Energy Consumption Labelling Regulation) and sued the defendant for injunctive relief. The defendant considers the action to be an abuse of rights and unfounded on the merits.
Process history so far:
The district court upheld the action. The defendant's appeal against this decision was unsuccessful. The Court of Appeal held that the action was not precluded by the defence of abuse of rights under Section 8 (4) UWG. In particular, the surpluses achieved by the plaintiff with its market surveillance and their use as well as the amount of the remuneration paid to its managing directors did not suggest an abuse of rights, even in the overall view of all circumstances.
Decision of the Federal Supreme Court:
The Federal Court of Justice dismissed the defendant's appeal, which was limited to questions of the admissibility of the action. The objection of abuse of rights under Section 8 (4) sentence 1 UWG was rightly denied by the Court of Appeal.
Surpluses from a market pursuit activity and their use (also) for purposes other than the prosecution of competition infringements in the interest of are in any case no indication for an abusive assertion of claims as long as the for an abusive assertion of claims as long as consumer protection through market protection through market surveillance as the purpose of the association is not as the purpose of the association, but in fact only serves to generate income and thus to finance projects that do not serve consumer protection through the consumer protection through the prosecution of competition violations. That is not the case here. If there are a large number of infringements against a consumer protection labelling or information obligation, effective information obligation serving consumer protection, an effective enforcement of consumer interests requires a correspondingly large number of warning warnings and - if no cease-and-desist declarations are issued - legal proceedings. - legal proceedings. As long as no further circumstances circumstances, the number of warnings and injunctions alone and the and cease-and-desist actions as well as the surpluses thus achieved can cannot justify the accusation of abuse of rights. Otherwise the plaintiff would be forced to stop its market surveillance after a certain number of warning letters or contractual penalties, as soon as it had covered the costs incurred by it. costs incurred in this respect.
An intention to make a profit that gives rise to the suspicion of an The amount of the remuneration paid to the two managing directors also does not of the two managing directors. In addition to the expenses for the plaintiff's statutory activities, the the applicant's statutory activities, the salaries of the managing directors in the years only a fraction of the plaintiff's total annual expenses in 2015 and 2016. of the plaintiff's total annual expenses. This rules out the possibility that the purpose of the plaintiff is to generate income for personnel costs and not and not to pursue consumer interests.
The plaintiff's preliminary statement of the amount in dispute of € 30,000 for the action for injunctive relief does not constitute an indication of an abuse of rights in pursuing the claim, taking into account the generally inconsistent practice of the Higher Regional Courts. According to the findings of the Court of Appeal, the lump sum for warning costs demanded by the plaintiff covers the costs and does not indicate an abusive intention to make a profit. The contributions to the plaintiff in the form of donations and sponsoring by Toyota also do not justify the assumption of an abuse of rights; according to the findings of the Court of Appeal, they did not lead to an unobjective unequal treatment of Toyota in the prosecution of environmental, consumer-relevant legal infringements or in the plaintiff's campaigning.
Judgment of the Federal Supreme Court of 4 July 2019 - I ZR 149/18
Lower courts:
Stuttgart Regional Court - Judgment of 13 December 2016 - 41 O 31/16 KfH -
Stuttgart Higher Regional Court - Judgment of 2 august 2018 - 2 U 165/16 -
Press release of the Federal Supreme Court of 04.07.2019
