On 28.05.2022, the last new rules of Directive (EU) 2019/2161 on better enforcement and modernisation of Union consumer protection rules will enter into force. This Directive is also called the "Omnibus" Directive, the transposition of which into national law will now take place on 28.05.2022 without transitional periods. The German transposition into national law took place through two laws in June 2021.
Newly created in German law are, among other things, new regulations on fines at the expense of entrepreneurs in the case of violations of competition law norms and claims for damages in favour of consumers against entrepreneurs.
Insofar as changes to the corresponding legal texts in the online shops or the general terms and conditions are necessary, we provide these automatically and in due time to the companies we support.
1. changes to the right of withdrawal for contracts for services and digital content
The amendment of the right of withdrawal concerns consumer contracts that have as their object the provision of services or the supply of digital content without an obligation to pay.
The right of withdrawal for contracts for the provision of services expires with the complete provision of the service. The regulation also covers contracts for which the consumer only provides personal data as consideration.
Keyword: "Payment with personal data". The right of withdrawal for contracts for which consideration has been agreed, on the other hand, remains unaffected by the changes.
For contracts for digital content that is not delivered on a durable medium, the right of withdrawal expires at the beginning of the performance of the contract. If consideration has been agreed, the right of withdrawal only expires if the consumer has expressly consented to the performance during the withdrawal period and the trader has expressly confirmed this consent to the consumer - depending on the type of contract conclusion - in accordance with Section 312f of the German Civil Code.
This essentially concerns the download of software. This also expressly affects apps (software) that are made available as an additional service for technical devices. (e.g.: Monitoring, calculation or evaluation software for technical devices).
2. amendment of the model revocation instruction and model revocation form
The model withdrawal forms and model withdrawal instructions are adapted:
In the model cancellation policy for contracts concluded away from business premises and distance contracts, the reference to contacting or cancelling by fax is deleted. Likewise, the model withdrawal form no longer contains a fax number.
The telephone number, on the other hand, must now be stated in the cancellation policy.
The adjustments must be made by 28 May 2022.
If the requirements are violated, the withdrawal period is extended to a maximum of twelve months and 14 days in accordance with § 356 para. 3 sentence 2 BGB. In addition, the entrepreneur must expect consequences under competition law, such as warnings.
3. amendments to the Unfair Competition Act (UWG)
The Unfair Competition Act (UWG) was amended.
Entrepreneurs must ensure more transparency and truthfulness with regard to their customer ratings, the products they offer and their role in the contract process. The aim is to prevent consumers from being deceived by falsified, purchased or otherwise inaccurate "reviews".
For this purpose, the so-called "black list" of the UWG (Annex to Section 3 (3) UWG) was adapted. All acts on this list are simply inadmissible without exception.
All actions related to covert advertising in search results, the resale of tickets and the inaccurate representation of consumer ratings are now expressly prohibited. Any advertising measures are to be reviewed.
a) Misleading through concealment of "dual quality
The new provision of Section 5 (3) No. 2 UWG provides that the marketing of a product as identical to a product provided in other EU Member States is unlawful if the goods differ substantially. Such a distinction must either be justified by legitimate and objective factors or be clearly recognisable to the consumer.
Example: A set for a cordless screwdriver is produced and offered for the French market in a different quality (stronger battery; spare battery; bit set with higher quality). In Germany, the similar set is reduced in quality for a lower price for marketing, but at first glance it is "identical".
The operator of a webshop aimed at consumers in Germany takes the product images and the product description of this set from the web catalogue of a webshop from France, translates the description by means of a web translator and publishes it in his webshop. The German webshop does not point out this significant difference between the goods and the French goods, so that it must be assumed that the operator of the webshop violates the ban on marketing substantially different goods as identical goods.
It follows that the product images and descriptions, including those provided by the manufacturers to the trader, must be checked and adapted for such product groups and articles.
b) Misleading by omission
According to Section 5a UWG, misleading by omission occurs if the trader withholds information from the consumer that is essential for the consumer's business decision. What information is essential is specified in the newly introduced Section 5b UWG.
The omission of information - even in the product description - is now expressly anti-competitive.
aa) Customer reviews
The trader must inform whether and how he ensures that customer reviews have been written by consumers who have actually used or purchased the product. This only applies to reviews provided by the trader himself and not to those collected by third parties and to which the trader merely refers. But beware: If third parties act on behalf of the entrepreneur, keyword "influencer", this can lead to liability. Any direct or indirect benefit to the "influencer" is sufficient.
Operators of online marketplaces will be obliged to inform whether, according to the supplier's own declaration, it is an entrepreneur, so that the consumer can recognise the capacity of a possible contractual partner.
cc) Ranking of online search results
Entrepreneurs who provide a search function for goods and services of different providers must inform about the selection and weighting of the main parameters of the ranking (Section 5b (2) sentence 1 UWG). Hidden advertising must also have no influence on the ranking (no. 11a of the annex to section 3 para. 3 UWG). This is intended to make the ranking of offers more transparent, which has a considerable impact on consumers' business decisions. All comparison portals or online marketplaces are covered, but not pure online search engines.
4. information obligations according to Art. 246d EGBGB
The information obligations of operators of an online marketplace have also been extended, Section 312k (1) BGB n. F. in conjunction with Article 246d EGBGB. High fines are now possible for violations.
In future, the operator of an online marketplace must provide information on the main parameters for determining the ranking of suggested products as a result of a search as well as on the relative weighting of these parameters.
Even if at first glance this provision only seems to apply to the operators of an online platform, it is to be expected that those online traders who become active on the recognisably illegal platform will also be liable.
In order for consumers to be able to identify whether they are entitled to consumer rights, the operators of an online marketplace must mark whether the products they offer come from a private or a commercial supplier.
5. new provisions on fines in the UWG and the EGBGB
a) Section 19 (1) UWG
The new fine under Section 19 (1) UWG for infringement of consumer interests.
Fines can now be imposed - in addition to the prosecution through warnings (!) - if an unfair commercial act within the meaning of Section 5c (2) UWG has been committed which harms consumer interests.
Includes in particular all violations of:
- the blacklist (Nos. 1 to 31 of the Annex to Section 3 (3) UWG),
- aggressive commercial acts pursuant to Section 4a (1) sentence 1 UWG,
- misleading commercial acts according to § 5 para. 1 or § 5a para. 1 UWG
- as well as continued unfair business acts that have already been prohibited by the courts.
According to the wording, only "widespread infringements" and "widespread infringements with a Union dimension" are covered. For this to be the case, a cross-border act must infringe Union law protecting the collective interests of consumers in at least three Member States. The requirement is met, for example, if misleading advertising is intended to be available in several member states or if the provider of an online shop enables delivery to consumers in other member states. An infringement has a "Union dimension" if at least two thirds of the member states and two thirds of the population of the EU are affected.
The amount of the fine depends on the annual turnover of the company in the member state where the violation occurs. The fine is limited to 4% of the annual turnover from a turnover of EUR 1.25 million. A maximum of EUR 50,000.00 applies to persons acting, unless the person concerned is also the entrepreneur.
However, the enforcement of these fines is limited, as the infringements can only be punished as part of a coordinated enforcement action by the member states.
Not limited is the action through warning letters. Such measures can block the fine proceedings under certain circumstances.
It is therefore important that in the event of such an accusation, the entrepreneur immediately seeks legal advice before making any statements.
b) Art. 246e EGBGB (fines)
Art. 246e § 1 para. 2 EGBGB now contains a list of "widespread violations" in connection with consumer contracts, such as the use of general terms and conditions that are invalid according to § 309 BGB or the insufficient labelling of an order button in electronic commerce. A fine with a maximum limit of EUR 50,000.00 is provided for such violations.
Warnings are also additionally possible here.
6. new compensation for consumers
As of 28.05.2022, a consumer may claim damages for unlawful business acts which the trader has carried out intentionally or negligently. The prerequisite is a violation of § 3 UWG as a result of which the consumer has made a business decision that he or she would not otherwise have made. Excluded are actions according to §§ 3a, 4 and 6 UWG.
In the event of infringements, the entrepreneur is now threatened not only with actions for injunctive relief by consumers but also with actions for damages by consumers under the UWG. It is now possible for the consumer to demand the cancellation of the contract. In this way, the consumer can withdraw from the contract without setting a deadline or demanding supplementary performance.
We strongly recommend having advertising and marketing measures legally examined before they are implemented.
7. amendments to the Price Indication Ordinance
The following amendments shall enter into force on 28.05.2022.
a) In future, the basic price must be indicated in the unit of measure "1 kilogram or 1 litre" as well as "unambiguously, clearly recognisable and easily legible". The provisions (Sections 4, 5 (1) PAngV ) now also cover goods whose nominal weight or nominal volume does not usually exceed 250 grams or 250 millilitres.
However, relief applies to the sale of perishable foodstuffs if the total price is reduced because of an "imminent risk of spoilage" or an "imminent expiry of shelf life".
(b) The amount of any deposit shall be stated alongside the total price and shall not be included in the total price.
c) In the case of price reductions ("strike prices", price offsets, etc.), the previous price must be stated in future whenever a price reduction is announced. This is the lowest price applied by the trader within the last 30 days before the price reduction.
Significance and implementation in practice:
- In the case of general announcements of price reductions, the lowest price of the last 30 days of the advertised product must be indicated for all sales channels.
- In the case of price reductions for only one sales channel, the lowest price for the product concerned in the last 30 days for the sales channel concerned must be indicated.
- As a rule, vouchers and discount codes are not an "individual price", even if they are distributed in an apparently personalised manner.
The European Commission has published a guide for the so-called "Omnibus Award" with many practical examples. This guide, which is also likely to become the basis for judicial decisions, can be found here: "Guidelines on the interpretation and application of Article 6a of Directive 98/6/EC".
d) Operators of "publicly accessible charging points" for electric vehicles by consumers must indicate the "energy price per kilowatt hour" at the charging point. Alternatively, the "call-up option for a display of the price on the display of a mobile terminal" is sufficient.
This provision should also cover employee charging points where vehicles not exclusively used for business purposes can be charged.
Some of the new provisions are quite "open" and will only be fleshed out by case law.
Employees should be familiarised with the new regulations and trained promptly. We provide low-cost online training for this purpose.
We are always available for questions and advice.
GoldbergUllrich Rechtsanwälte PartG mbB 2022
Specialist lawyer for industrial property protection
Specialist lawyer for information technology law