The First Civil Senate of the Federal Court of Justice, responsible, inter alia, for competition law, had to decide whether Hamburger Sportverein (HSV) could prevent unauthorized dealers from offering tickets for HSV home games.
HSV distributes tickets through authorized points of sale, by telephone order, and via the internet. According to Section 2 of the General Terms and Conditions (GTC) for ticket sales, the purchaser expressly agrees to use the ticket(s) exclusively for private purposes. The defendants commercially offer tickets for football matches – including HSV home games – online, with prices regularly significantly exceeding the official selling price. They acquire the tickets either directly from HSV, without identifying themselves as commercial providers, or from private individuals. HSV objected to the defendants' ticket trading as anti-competitive.
The District Court Hamburg granted HSV's action for injunctive relief. The Higher Regional Court Hamburg upheld this judgment.
The Federal Court of Justice ruled that HSV can only partially prohibit the defendants from trading tickets. It does not have to accept the defendants acquiring tickets from its distribution organization for resale purposes. However, it cannot prohibit the defendants from trading tickets they acquired from private individuals. In HSV's authorized distribution, the defendants can only purchase tickets if they misrepresent their intention to resell. When acquiring tickets from HSV's sales organization, its GTC apply to the defendants – under the present circumstances. HSV had sent its GTC to the defendants in the course of a warning letter, explicitly stating that the transfer 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 concerns regarding the validity of the corresponding clause in the GTC.
The acquisition of tickets by the defendants or their employees – undertaken with the intention of resale – constitutes an unfair surreptitious acquisition, which the defendants are obliged under competition law to cease.
If the defendants acquire tickets from private individuals via classified ads in sports magazines, they do not, however, misrepresent their intention to resell. Insofar as private sellers, by selling tickets to the defendants, violate their contractual obligation to HSV, the defendants' conduct – according to the BGH – is not anti-competitive under the aspect of inducing breach of contract or exploiting another's breach of contract. The defendants' expression of willingness to acquire tickets from private individuals in an advertisement addressed to the general public does not yet constitute unfair inducement to breach of contract.
The exploitation of another's breach of contract is generally not anti-competitive. It is not the responsibility of a third party to ensure compliance with contractual agreements that HSV concludes with ticket purchasers. This also applies if HSV, through these agreements, pursues legitimate interests in stadium safety and maintaining a socially acceptable price structure.
Judgment of the Federal Court of Justice of September 11, 2008 – I ZR 74/06 – bundesligakarten.de
Previous Instances: Higher Regional Court Hamburg, Judgment of April 5, 2006 – 5 U 89/05 (OLG-Rep 2007, 66), District Court Hamburg, Judgment of May 12, 2005 – 315 O 586/04
Source: Press Release of the Press Office of the BGH No. 170/2008 dated 12.09.2008, Herrenstr. 45 a, 76133 Karlsruhe, Tel. 0721-159-5013, Fax. 0721-159-5501, E-Mail: pressestelle@bgh.bund.de.
Attorney Michael Ullrich, LL.M. (Information Law)
E-mail: m.ullrich@goldberg.de
