With effect from 17.05.2010, the Service Information Obligations Ordinance, the so-called DL-InfoV, will come into force without transitional provisions.
This new DL-InfoV is based on the EU Services Directive (Directive 2006/123/EC Official Journal of the EU 2006, L376/36 "DLRL").
This Services Directive and its implementation in the Federal Republic of Germany impose further significant information obligations on all service providers.
A violation of this DL-InfoV is an administrative offence. Non-compliance with the DL-InfoV can and will most likely lead to a new wave of warning letters.
This Service Information Obligations Ordinance basically affects all persons or companies based in Germany that provide services. It is irrelevant whether these services are provided commercially or for profit, on a non-profit basis, on a freelance basis or as a legal entity on the Internet or in the "real" world.
These regulations also apply to foundations, universities, schools and associations that provide services. Exceptions apply only to banks, transport service providers, insurance companies and the healthcare sector.
The DL-InfoV distinguishes the information duties as follows:
- Information to be made available " at all times
- Information to be made "available upon request" .
- Information to be "Priced
Some of these new information requirements are largely congruent with the familiar obligations under Section 5 of the German Telemedia Act (TMG), the provider identification or the "imprint" for websites. Other information obligations are congruent with the Price Indication Ordinance (Preisangabenverordnung), which previously applied only to the trade and to end consumers.
For the service sector, a similar obligation now also applies to the commercial customer. If the trade of goods is combined with services (e.g. consulting, assembly, design, etc.), this constitutes a service within the meaning of the Ordinance.
On the individual duties:
I. Information to be " always made available":
From each service provider shall provide to a contracting authority before conclusion of the contract provide the following information in a clear and comprehensible form:
1. his or her surname and first name, in the case of partnerships with legal capacity and legal entities, the company name, stating the legal form,
2. the address of his place of business or, where there is no place of business, an address at which he may be contacted and other particulars enabling the recipient of the service to be contacted rapidly and directly, in particular a telephone number and an e-mail address or fax number,
3. if it is registered in one, the commercial register, register of associations, register of partnerships or register of cooperatives, stating the register court and register number,
4. in the case of activities subject to authorisation, the name and address of the competent authority or the unitary body,
5. if it has a turnover tax identification number pursuant to § 27a of the Turnover Tax Act, this number,
6. if the service is provided in the exercise of a regulated profession, the legal professional title, the state in which it was awarded and, if he belongs to a chamber, professional association or similar body, its name,
7. the general terms and conditions used by him, if any,
8. any contractual clauses used by him concerning the law applicable to the contract or the place of jurisdiction,
9. any existing guarantees that go beyond the statutory warranty rights,
10. the essential characteristics of the service, insofar as these are not already apparent from the context,
11. if professional liability insurance exists, details of it, in particular the name and address of the insurer and the territorial scope.
Remark: Even if there is no obligation for professional liability insurance in the specific individual case, insurance contracts concluded voluntarily must be disclosed! Here - subject to the development of case law - only the name, address of the insurance company and the territorial scope (Germany, Europe, etc.) should be stated.
II. Thus, according to § 2 DL-InfoV, the information must be provided "always":
The service provider may choose to provide the "always to provide" information as follows:
1. .... notify the service recipient of their own accord.
Remark: For example, by letter, email, contract documents/offers.
2. .... at the place where the service is provided or the contract is concluded in such a way that they are easily accessible to the recipient of the service.
Note: For example, by posting on the business premises, provided that the conclusion of the contract takes place on the business premises.
3....make it easily accessible to the recipient of the service electronically via the address provided by him.
Annotation: The regulation is worded in a misleading way. The words "to make easily accessible via an electronic address specified by him" grammatically refers to an address of the service recipient and not to an address of the service provider! What seems to be meant here from the overall context is an announcement via an electronic address of the service provider.
In our opinion, this interpretation results from the justification of the regulation by the legislator (Bundesrat-Drucksache 888/09, page 9). According to this justification, most of the obligations seem to be fulfillable by supplementing the provider identifiers. However, there is a certain degree of legal uncertainty here until clarification is provided by case law.
The duty to inform should be satisfied by publication on the website.
Please note:
It must be ensured that the Internet address is made known to the service recipient in good time and is easy to find.
Problems with telephone contacts:
Fulfilling the obligations can be problematic when customers, clients or service recipients contact the company by telephone. Here, it must be ensured in the respective company that the required information is communicated to the inquiring person without delay before the contract is concluded.
In principle, it is advisable to provide a combination imprint for the information according to § 5 TMG and the information according to the DL-InfoV on the respective homepage.
4.....include all detailed information documents provided by the provider to the service recipient about the service offered.
Remark: For example, through brochures, leaflets, flyers, information folders, catalogues, etc.
III. Information to be provided upon request :
Before conclusion of a written contract or, if no written contract is concluded, or before the service is provided, the following information shall be provided in a clearly understandable form on request shall be provided:
(1 ) If the service is provided in the exercise of a regulated profession (lawyers, notaries, tax advisors, auditors, but also craftsmen, experts, etc.), the service providers must provide a reference to the professional regulations.
Note: This supplementary information should already be provided in the provider identification on the internet, as these obligations must also be fulfilled in accordance with the TMG.
2. the service provider, and each service provider, shall disclose multidisciplinary activities and the professional communities with other persons directly related to the service and, where necessary, the measures it has taken to avoid conflicts of interest.
Remark: This provision leads to considerable uncertainty due to the numerous undefined legal terms!
On request, the "professional communities" of the service provider that are "directly connected" with the provision of the service must be named.
Some warning associations already want to interpret this provision to the effect that the subcontractors and contractual partners for the performance of the service must be specifically named prior to a specific order and in the event of a specific request.
This interpretation is opposed by the fact that the service providers are not permanently connected with subcontractors and other contractual partners in a professional "community" and that the disclosure obligation would have to disclose trade secrets of the service provider.
According to the current wording of the regulation, each trader has to check in each individual case which information he has to provide with regard to the specific service on request.
Appropriate rules of conduct shall be established within the company for such requests.
3. upon request, provide all codes of conduct to which he has subscribed, the address at which they can be accessed electronically and the languages in which they are available. (Example: Code of Ethics)
4. if the service provider has subscribed to a code of conduct or belongs to an association that provides for an out-of-court dispute resolution procedure, information on this procedure, in particular on access and more detailed information on its prerequisite, shall be provided. (Example: Ombudsman procedure)
Note: The service provider shall include this information on points 2, 3 and 4 above with all detailed information documents, such as company presentations. Simple flyers or brief presentations of the company or service are not likely to be covered by this regulation.
IV. Price information according to § 4 DL-InfoV
This information is only to be provided to service recipients who are not final consumers within the meaning of the Price Indication Ordinance. This means that the following information must also be provided to business customers in a clear and comprehensible form:
In the form of the Price Indication Ordinance, the prices for the service must be communicated in detail in advance.
Unless the service provider has fixed the price of the service in advance, he shall, on request, communicate the price of the service or, if no exact price can be given, either the further details of the calculation on the basis of which the recipient of the service can easily calculate the amount of the price.
Remark: As a rule, a detailed offer or a detailed cost estimate is sufficient. If no lump sum prices are quoted, the unit prices must be stated.
V. Further provisions
According to Section 5 DL-InfoV, no service provider may publicise conditions for access to his service which contain discriminatory provisions based on the nationality or residence of the service recipient. This does not apply to differences in access conditions that are directly justified by objective criteria.
As already explained, any violation of the DL-InfoV is in principle an administrative offence within the meaning of Section 146 (2) No. of the Trade, Commerce and Industry Regulation Act (Gewerbeordnung). Any information not included can be punished with a fine of up to € 1,000.00. (Section 6 DL-InfoV in conjunction with Section 6 c, 146 subsection II, no. 1 subsection 3 GWO).
Remark: Far more threatening for the entrepreneur concerned in each case are the warning notices under the UWG based on failure to provide the information. A new wave of warning letters is imminent here. The provisions of the DL-InfoV expressly also apply to self-employed persons and freelancers who are not normally subject to the Trade Regulation Act.
Change the required information immediately to avoid warnings.
At the end of this text you will find a free information sheet on the DL-InfoV to download in *.pdf format.
Please do not hesitate to contact us if you have any questions:
Goldberg Attorneys at Law
Alexander Goldberg
Specialist attorney for intellectual property law
Specialist attorney for information technology law (IT law)
https://www.goldberg.de/
Or our cooperation partner:
Dirk Möller
Lawyer
Specialist lawyer for medical law
http://www.medizinrecht-wuppertal.de/
Below you will find a link to:
A version of this information in PDF format
© Goldberg Attorneys at Law 2010
