The First Civil Senate of the Federal Court of Justice, which is responsible inter alia for competition law, today ruled that it is neither misleading nor a violation of the principle of master craftsman presence under the Crafts Code if the master craftsman in a hearing aid acoustics company is not permanently present but is still responsible for a second business in a neighbouring town.
Both parties are active in the field of hearing aid acoustics, which is a trade requiring authorisation according to the Handicrafts Code. The defendant operates a shop in Dillingen an der Donau, the plaintiff in Günzburg, 26 km away, where a sister company of the defendant also operates. The defendant employs a hearing aid acoustics master craftsman in Dillingen as operations manager, who is at the same time operations manager in the Günzburg shop of the sister company. According to the plaintiff, the appointment of a joint operations manager for the two businesses is inadmissible because of a violation of the Handicrafts Code and because of misleading the clientele. The plaintiff therefore sued the defendant for injunctive relief and compensation for warning and investigation costs.
The Regional Court of Augsburg and the Higher Regional Court of Munich considered the action to be well-founded, whereby the Higher Regional Court focused on the misleading of consumers and left open the question of a violation of the Crafts Code. The Federal Supreme Court today overturned these decisions and dismissed the action.
According to the Federal Supreme Court, there was no misleading impression in the dispute: It is true that a business offering a service generally gives the consumer the impression that the services can be provided directly to customers in its business premises during business hours. However, consumers also take into account the nature of the service they are requesting as well as the customs of business transactions. They therefore took into account that in certain sectors, and in particular where the provision of the service in the form of advice or treatment takes a long time, it is often customary for such advice or treatment to be given only by prior appointment, even when the business premises are open. They are therefore not misled if the examinations to be carried out by a master craftsman at the defendant's premises in Dillingen are only offered by appointment.
The Federal Supreme Court also denied a violation of the provisions of the Crafts Code. However, in the case of health crafts, a permanent presence of the master craftsman is required for a business premises, apart from in very exceptional cases. However, it does not follow from this that the operator of a hearing aid acoustics company may not keep his shop open when the master craftsman is not present in the shop. During this time, appointments can be made with customers coming into the shop, spare and wear parts such as batteries for hearing aids can be delivered and similar services can be provided which do not require the presence of a master craftsman. It would be inadmissible if a master craftsman was only occasionally available in the business, for example because he had to look after a large number of businesses or businesses that were far away from each other. However, this was not the case in the dispute. According to the findings, the hearing aid acoustics master worked half of the day at the defendant's business in Dillingen and the rest at the business of the sister company in Günzburg, where he was readily available.
Judgment of the BGH of 17 July 2013 - I ZR 222/11
Lower courts:
OLG Munich - Judgment of 10 November 2011 - 29 U 1614/11, WRP 2012, 579
LG Augsburg -Judgement of 31 March 2011 - 1 HKO 3514/09
Source: Press release of the BGH
Goldberg Attorneys at Law 2013
Lawyer Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
