The Regional Court of Bonn has ruled that the late disclosure or lack of disclosure of the annual financial statements can be admonished by competitors.
Pursuant to § 325 HGB, the legal representatives of corporations must publish the adopted or approved annual financial statements for the company in the Federal Gazette no later than one year after the closing date of the financial year. The defendant in the injunction did not comply with this obligation in the case to be decided.
The Bonn Regional Court stated in this regard:
"The provisions of §§ 325 ff. HGB are market conduct regulations within the meaning of § 3a UWG.
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The purpose of disclosure according to §§ 325 ff. HGB is, on the one hand, the functional protection of the market and, on the other hand, the individual protection of market participants; disclosure or publicity forms the correlate of market participation (Merkt, in: Baumbach/Hopt, HGB, 36th ed. 2014, § 325 marginal no. 1). The publicity obligations serve in particular to protect creditors and other participants in economic life, who thus gain an insight into the economic circumstances (OLG Köln v. 08.03.1991, 2 Wx 1/91, NJW-RR 1992, 486). The provisions in §§ 325 ff. HGB (also) have a protective function under competition law. This interpretation is confirmed by the legislative materials on the Capital Companies and Co-Directive Act (KapCoRiLiG) of 1999 cited by the plaintiff in the injunction in its submission of 09.08.2016. Thus, the letter of the BMJ of 30.03.1999 (3507/20 - 320546/99, available at http:// www.gmbhr.de/frueher/09_99/rechnung.htm ), it is assumed that in the event of a breach of the duty of disclosure, an action under the Unfair Competition Act is possible (see also the explanatory memorandum to the bill attached to this letter, there on Art. 1, No. 12 - § 335 HGB, available at http:// www.gmbhr.de/frueher/09_99/entwurf.htm). Last but not least, this interpretation is also prescribed by EU law (see the so-called Daihatsu decision of the ECJ of 4 December 1997, C-97/96, [1997] ECR I-6843, cited in juris [Ls. 1, para. 18 et seq.], as well as the fourth recital of the First Directive 68/151/EEC of 9 March 1968, OJ No. L 65, 8, and the third recital of the Fourth Directive 78/660/EEC of 25 July 1978, OJ No. L 222, 11).
Against the background of the above, the Board does not adhere to the dissenting legal opinion expressed at the oral hearing on 27 July 2016, but affirms the character of Sections 325 et seq. HGB as market conduct regulations within the meaning of Section 3a UWG.
The suitability for a noticeable impairment of the interests of market participants is indicated by the breach of the market conduct rules which lies in the non-fulfilment of the publicity obligation (Köhler/Bornkamm, UWG, 34th ed. 2016, § 3a marginal no. 1.112)."
The Regional Court of Bonn therefore ordered the defendant in the injunction to
"refrain from failing to comply with its duty of disclosure in the electronic Federal Gazette by publishing there the information provided for by law within the meaning of section 325 (1) of the German Commercial Code or, if the legal requirements apply to it, see section 326 (2) of the German Commercial Code, by depositingit there".
Until now, only fines were threatened for violations of the disclosure obligations under commercial law. Now competitors also have the possibility to take action under competition law against their competitors and rivals for such violations. Therefore, in future, managing directors in particular should ensure that their companies disclose the respective annual financial statements in good time. Otherwise, in addition to fines, there is also the threat of competition law warnings from competitors.
Source: Regional Court of Bonn, judgement of 31.08.2016, file number 1 O 205/16
Goldberg Attorneys at Law 2016
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
