The First Civil Senate of the Federal Court of Justice, responsible inter alia for competition law, ruled today 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 constantly present but is also responsible for a second business in a neighboring city.
Both parties operate in the field of hearing aid acoustics, which is a licensed craft under the Crafts Code. The defendant runs a business in Dillingen an der Donau, while the plaintiff operates in Günzburg, 26 km away, where a sister company of the defendant also operates. The defendant employs a master hearing aid acoustician as operations manager in Dillingen, who simultaneously serves as operations manager for the sister company's Günzburg business. In the plaintiff's view, the appointment of a single operations manager for both businesses is impermissible due to a violation of the Crafts Code and misleading customers. Consequently, the plaintiff seeks an injunction and reimbursement for warning and detective costs from the defendant.
The Augsburg Regional Court and the Munich Higher Regional Court considered the claim to be well-founded, with the Higher Regional Court focusing on consumer deception and leaving open the question of a violation of the Crafts Code. Today, the Federal Court of Justice overturned these decisions and dismissed the claim.
Deception is ruled out in this case, according to the Federal Court of Justice: While a company offering a service generally conveys to consumers the impression that services can be directly provided at its business premises during opening hours, consumers also consider the nature of the service they demand and common business practices. They therefore take into account that in certain areas, particularly where the provision of a service in the form of consultation or treatment takes a longer time, it is often customary for such consultation or treatment to occur only by prior appointment, even when the business premises are open. Therefore, they are not misled if examinations to be performed by a master craftsman at the defendant's business in Dillingen are offered only by appointment.
The Federal Court of Justice also denied a violation of the provisions of the Crafts Code. However, in health-related crafts, with few exceptions, a permanent master craftsman presence is required for a business establishment. This does not imply, however, that the operator of a hearing aid acoustics company may not keep its shop open when the master craftsman is not present on the premises. During this time, appointments can be made with customers visiting the shop, spare and wear parts such as hearing aid batteries can be dispensed, and similar services that do not require the presence of a master craftsman can be provided. It would indeed be impermissible if a master craftsman were only occasionally available at the business, for example, because they had to manage a large number of businesses or widely separated businesses. However, this is not the case in the present dispute. According to the findings, the master hearing aid acoustician was present for half of each day at the defendant's business in Dillingen and for the remainder at the sister company's business in Günzburg, and was readily available there.
Judgment of the Federal Court of Justice (BGH) of July 17, 2013 – I ZR 222/11
Lower Courts:
Munich Higher Regional Court (OLG) – Judgment of november 10, 2011 – 29 U 1614/11, WRP 2012, 579
Augsburg Regional Court (LG) – Judgment of March 31, 2011 – 1 HKO 3514/09
Source: Press Release of the Federal Court of Justice
Goldberg Attorneys at Law 2013
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: info@goldberg.de
