The I. Civil Senate of the Federal Court of Justice, which is responsible for competition law, among other things, dealt with the question of which information duties are incumbent on the real estate agent in a real estate advertisement on energy consumption.
In the three proceedings, Deutsche Umwelthilfe e. V. contests newspaper advertisements by real estate agents, which it considers inadmissible due to the absence of information contained in the energy certificate.
The defendant estate agents offered residential properties for rent or sale in daily newspapers. The advertisements lacked information on the type of energy 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 sees this as a violation of § 16a of the Energy Saving Ordinance (EnEV). She has demanded that the defendants refrain from publishing advertisements for the letting or sale of real estate for which an energy performance certificate is available without the mandatory information provided for in § 16a EnEV.
The Münster Regional Court sentenced the defendant as requested; the Bielefeld and Munich II Regional Courts dismissed the action. All actions were successful at second instance. The Federal Supreme Court dismissed the appeals of the defendant real estate agents in two cases, in the third case it overturned the decision and referred the case back because it is necessary to take evidence on whether an energy performance certificate was available when the advertisement was placed.
However, the plaintiff is not entitled to injunctive relief under § 3a UWG for a violation of § 16a EnEV. The provision obliges sellers and landlords to provide information on energy consumption in a property advertisement in commercial media prior to the sale and letting of a property if an energy performance certificate is available at that time. The real estate agent is not the addressee of this information obligation. A different understanding results neither from the legal material nor from the required interpretation in conformity with the Directive. It is true that Art. 12(4) of Directive 2010/31/EU on the Energy Performance of Buildings provides for information obligations that do not exempt real estate agents. However, contrary to the clear wording of the provision, a corresponding obligation cannot be established by § 16a EnEV through an interpretation in conformity with the Directive.
However, the plaintiff can successfully claim against the defendants from the point of view of misleading consumers by withholding material information under § 5a para. 2 UWG. Pursuant to § 5a (4) UWG, essential information is information that may not be withheld from the consumer on the basis of regulations under EU law or under legal provisions transposing directives under EU law for commercial communications, including advertising and marketing. From Art. 12 of Directive 2010/31/EU follows the obligation of the real estate agent to include necessary information on energy consumption in the advertisement. The essential information to be included is the type of energy 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 Supreme Court of 5 October 2017 - I ZR 229/16
Lower courts:
LG Bielefeld - Judgment of 6 October 2015 - 12 O 60/15
OLG Hamm - Judgment of 4 August 2016 - I-4 U 137/15
and
Judgment of the Federal Court of Justice of 5 October 2017 - I ZR 232/16
Lower courts:
Münster Regional Court - Judgment of 25 November 2015 - 021 O 87/15
OLG Hamm - Judgment of 30 August 2016 - I-4 U 8/16
and
Judgment of the Federal Court of Justice of 5 October 2017 - I ZR 4/17
Lower courts:
LG München II - Judgment of 3 December 2015 - 2 HK O 3089/15
OLG Munich - Judgment of 8 December 2016 - 6 U 4725/15
Source: Press release of the Federal Court of Justice of 05.10.2017
GoldbergUllrich Attorneys at Law 2017
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
