The First Civil Senate of the Federal Court of Justice, responsible inter alia for competition law, has addressed the question of which information obligations an estate agent has regarding energy consumption in a property advertisement.
In the three proceedings, Deutsche Umwelthilfe e. V. (German Environmental Aid) is taking action against newspaper advertisements by estate agents, which it considers inadmissible due to the absence of information contained in the energy performance certificate.
The defendant estate agents offered residential properties for rent or sale in daily newspapers. The advertisements lacked information on the type of energy performance certificate, the main energy source for heating the residential building, the year of construction of the residential building, or the energy efficiency class.
The plaintiff considers this a violation of Section 16a of the Energy Saving Ordinance (EnEV). She demanded that the defendants cease publishing advertisements for the rental or sale of properties for which an energy performance certificate exists, without including the mandatory information stipulated in Section 16a EnEV.
The Regional Court of Münster ruled against the defendant as requested; the Regional Courts of Bielefeld and Munich II dismissed the action. In the second instance, all actions were successful. In two proceedings, the Federal Court of Justice rejected the appeals of the defendant estate agents, while in the third proceeding, it overturned the decision and remanded the case, as evidence needed to be taken to determine whether an energy performance certificate was available when the advertisement was placed.
However, the plaintiff is not entitled to a cease-and-desist claim under Section 3a of the Act Against Unfair Competition (UWG) due to a violation of Section 16a EnEV. This provision obliges sellers and landlords, prior to the sale and rental of a property, to provide information on energy consumption in a property advertisement in commercial media, if an energy performance certificate is available at that time. The estate agent is not the addressee of this information obligation. A different interpretation does not arise from the legislative materials, nor from a necessary interpretation in conformity with the directive. Although Article 12(4) of Directive 2010/31/EU on the energy performance of buildings provides for information obligations that do not exclude estate agents, such an obligation cannot be established through Section 16a EnEV by means of a directive-compliant interpretation, contrary to the clear wording of the provision.
However, the plaintiff can successfully claim against the defendants on the grounds of misleading consumers by withholding essential information under Section 5a (2) UWG. According to Section 5a (4) UWG, essential information includes information that must not be withheld from the consumer based on Union law regulations or legal provisions for the implementation of Union law directives for commercial communication, including advertising and marketing. Article 12 of Directive 2010/31/EU establishes the obligation for estate agents to include necessary information on energy consumption in the advertisement. The essential information that must be provided includes the type of energy performance certificate, the main energy source, the year of construction of the residential building, the energy efficiency class, and the value of the final energy demand or final energy consumption.
Judgment of the Federal Court of Justice of October 5, 2017 – I ZR 229/16
Lower Courts:
Regional Court Bielefeld – Judgment of October 6, 2015 – 12 O 60/15
Higher Regional Court Hamm – Judgment of august 4, 2016 – I-4 U 137/15
and
Judgment of the Federal Court of Justice of October 5, 2017 – I ZR 232/16
Lower Courts:
Regional Court Münster – Judgment of november 25, 2015 – 021 O 87/15
Higher Regional Court Hamm – Judgment of august 30, 2016 – I-4 U 8/16
and
Judgment of the Federal Court of Justice of October 5, 2017 – I ZR 4/17
Lower Courts:
Regional Court Munich II – Judgment of December 3, 2015 – 2 HK O 3089/15
Higher Regional Court Munich – Judgment of December 8, 2016 – 6 U 4725/15
Source: Press release of the Federal Court of Justice of October 5, 2017
GoldbergUllrich Law Firm 2017
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: info@goldberg.de
