On 21 May 2008, the Federal Cabinet passed a draft amendment to the Unfair Competition Act (UWG). The law gives consumers more legal certainty, among other things there will be a "black list" of unfair business practices. The amendment implements the EU Directive 2005/29/EC and expands the high level of consumer protection in competition law that was already created in Germany with the last reform of the UWG in 2004.
"With the reform, Germany is making an important contribution to strengthening the European internal market. Consumers will now be protected from unfair commercial practices and fraudulent traders when shopping abroad just as they are at home. They will be better able to take advantage of the benefits of the European Single Market, such as a wider range of products and lower prices, whether in a shop abroad or when shopping via a foreign website. This also pays off for businesses. They can reach 450 million consumers in the EU in the same way they reach customers in their country of origin," said Federal Minister of Justice Brigitte Zypries.
On the regulations in detail:
- The UWG will be supplemented by an annex with 30 misleading and aggressive commercial acts that are prohibited under all circumstances (so-called "black list"). These "absolute" prohibitions will make it easier for consumers to enforce their rights. The listing also leads to greater transparency. This is because the consumer can see directly from the text of the law which behaviour towards him or her is prohibited in any case.
Examples of unlawful acts:
- The untruthful assertion by a trader that he is one of the signatories of a code of conduct (No. 1 of the Annex to Section 3 (3) UWG-E),
- the untrue statement or creating the false impression that rights existing by law anyway, such as rights of withdrawal or rescission, constitute a special feature of the offer (No. 10 of the Annex to Section 3 (3) UWG-E),
- the untrue statement that the trader will soon go out of business or relocate his business premises (No. 15 of the Annex to Section 3 (3) UWG-E),
- the transmission of advertising material accompanied by a request for payment if this conveys the false impression that the advertised goods or services have already been ordered (No. 22 of the Annex to Section 3 (3) UWG-E).
- In future, the UWG will explicitly also apply to the conduct of businesses during and after the conclusion of a contract. Previously, the regulations of the UWG only referred to business acts before the conclusion of a contract.
Example: A consumer submits a claim under an insurance contract to an insurance company several times in writing. The insurance undertaking systematically does not reply to these letters in order to dissuade the consumer from exercising his contractual rights. Such conduct is inadmissible according to No. 27 of the Annex to Section 3 (3) UWG-E.
- It is expressly stipulated that companies may not withhold information from consumers that they need for their economic decision. A corresponding catalogue of information requirements creates transparency and legal certainty. This catalogue is not exhaustive; case law can develop it further.
Example: A garden centre sells non-native plants and shrubs for the garden without pointing out that they must not be planted in the garden. According to Section 5a (3) No. 1 UWG-E, such conduct is unfair.
Source: Press release of the Federal Ministry of Justice of 21 May 2008, Published by the Press and Public Relations Department of the Federal Ministry of Justice, Responsible: Eva Schmierer; Editors: Dr. Henning Plöger, Dr. Isabel Jahn, Johannes Ferguson, Ulrich Staudigl, Mohrenstr. 37, 10117 Berlin, Telephone 01888 580-9030, Fax 01888 580-9046, E-Mail: presse@bmj.bund.de
Due to the new legal regulations, all entrepreneurs and traders must adapt to the new legal regulations. It is therefore imperative to review the general terms and conditions and future advertising measures and to amend them at short notice if necessary.
Goldberg Attorneys at Law, Wuppertal-Solingen 2008
Attorney at Law Michael Ullrich, LL.M.(Information Law)
m.ullrich@goldberg.de
