In proceedings conducted by us, the Cologne Higher Regional Court(judgment of 04.04.2025, AZ. 6 U 116/24, not final) ruled that the debtor of an injunction agreement is entitled to extraordinary termination of this declaration if the creditor no longer has standing to sue. This means that there is finally a higher court decision on the possibility of termination in such cases.
In April 2022, our client terminated the cease-and-desist agreements it had concluded in 2015 and 2018 without notice. The legal basis for the termination was that the creditor's material authority had ceased to exist. The creditor had not been entered in the list of associations with standing to sue maintained by the Federal Ministry of Justice after 01.12.2021. In the action, our client sought a declaration that the cease-and-desist agreements had been terminated by the termination without notice.
The Cologne Higher Regional Court, like the Cologne Regional Court before it, upheld this action.
It was unreasonable to adhere to the cease-and-desist agreement, as the association's authority to act was no longer valid due to its lack of registration in the list of qualified trade associations pursuant to Section 8b UWG. The lack of material authorization is an important reason that justifies the termination of the cease-and-desist agreement due to the unreasonableness of the continuation of the agreement. Even the possibility that the defendant's material authorization could be revived later by an entry in the list does not render the termination ineffective. The plaintiff could not be required to wait for a legally binding decision on the inclusion of the defendant in the list. The Federal Court of Justice's case law on old injunctions applies in this respect.
The Higher Regional Court of Cologne also stated that it would be incompatible with the aim of the registration requirement to prevent abuse if an association not entered in the list could continue to generate income from contractual penalty agreements without being able to contribute to the promotion of fair competition by asserting injunctive relief. The debtor had no interest worthy of protection in the continuation of the injunction agreement. In contrast, the plaintiff could not reasonably be expected to continue the contract. At the time of her termination, 20 associations had already been entered in the list, while the defendant had not.
The appeal to the BGH was not admitted. The appeal against denial of leave to appeal is pending before the BGH under AZ. I ZR 83/25.
