The I. Civil Senate of the Federal Court of Justice, which is responsible, inter alia, for competition law, had to decide whether the Hamburger Sportverein (HSV) can prevent dealers not authorised by it from offering tickets for HSV home matches.
HSV sells the tickets in authorised sales outlets, after ordering by telephone and via the Internet. According to number 2 of the General Terms and Conditions (AGB) for the sale of tickets, the purchaser bindingly agrees to use the ticket(s) exclusively for private purposes. The defendants commercially offer tickets for football matches on the internet - also for home matches of HSV - with prices regularly being considerably higher than the official selling price. They purchase the tickets either directly from HSV, without identifying themselves as commercial sellers, or from private individuals. HSV has objected to the defendant's ticket trading as anti-competitive.
The Hamburg Regional Court upheld HSV's action for an injunction. The Hamburg Higher Regional Court confirmed this ruling.
The Federal Supreme Court has ruled that HSV can only partially prohibit the defendants from trading in tickets. It does not have to accept that the defendants obtain tickets from its sales organisation for the purpose of resale. However, he cannot prohibit the defendants from trading in tickets that they have purchased from private individuals. In HSV's authorised sales organisation, the defendants can only buy the tickets if they are deceptive about their intention to resell them. When purchasing the tickets from HSV's sales organisation, the defendants are - under the present circumstances - subject to its GTC. HSV had sent the defendants its general terms and conditions in the course of a warning, explicitly stating that the sale of tickets to resellers was excluded.
According to the BGH, HSV is free to refuse to sell tickets to commercial ticket dealers. There were no objections to the effectiveness of the corresponding clause in the general terms and conditions.
The purchase of the cards - with the intention of resale - by the defendants or their employees was an unfair surreptitious purchase, which the defendants were obliged to refrain from under competition law.
However, if the defendants acquire tickets from private persons via want ads in sports magazines, they do not deceive about their intention to resell. Insofar as private sellers violate the contractual obligation entered into with HSV by selling tickets to the defendants, the defendants' conduct - according to the BGH - is also not anti-competitive under the aspect of inducing a breach of contract or taking advantage of another's breach of contract. The fact that the defendants expressed their willingness to purchase tickets from private individuals in an advertisement directed at the general public did not constitute an unfair inducement to breach of contract.
The exploitation of another party's breach of contract was in principle not anti-competitive. It was not the task of a third party to ensure compliance with contractual agreements concluded by HSV with ticket purchasers. This also applied if HSV pursued legitimate interests of stadium security and compliance with a socially acceptable price structure with these agreements.
Judgment of the Federal Court of Justice of 11 September 2008 - I ZR 74/06 - bundesligakarten.de
Previous instances: OLG Hamburg, judgement of 5.4.2006 - 5 U 89/05 (OLG-Rep 2007, 66) , LG Hamburg, judgement of 12.5.2005 - 315 O 586/04
Source: Press release of the press office of the Federal Supreme Court No. 170/2008 of 12.09.2008, Herrenstr. 45 a, 76133 Karlsruhe, Tel. 0721-159-5013, Fax. 0721-159-5501, E-Mail: pressestelle@bgh.bund.de.
Attorney at Law Michael Ullrich, LL.M. (Information Law)
E-mail: m.ullrich@goldberg.de
