Price fixing trustee can demand € 147.56 for a warning letter

Who or what is a price fixing trustee?

The Book Price Fixing Act (BuchPrG) obliges publishers and importers of books to fix the final prices of the books they publish or import. books they publish or import. Anyone who sells books to end users in Germany on a books to end users in Germany is therefore obliged to charge the price set by the publishers. price set by the publishers. New books may therefore be sold only at the fixed price. The price maintenance cultural asset "book" and prevent a price war between libraries. libraries.

Can I be warned because of an Can I be warned because of an incorrect book price?

Violations of the BuchPrG are anti-competitive and may be prosecuted by competitors and so-called price-fixing trustees pursuant to § 9 para. 2 no. 3 BuchPrG in conjunction with. § Section 12 (1) sentence 2 UWG.

According to their own statements, the lawyers who act as price maintenance trustees are commissioned by a large number of German publishing houses to monitor, as lawyers, the compliance with price maintenance of those traders who sell price-fixed products to final consumers on a commercial basis in accordance with the Book Price Maintenance Act.

Most of the cases in which the price maintenance trustees issue warnings is the offering of second-hand books on the Internet which are either have not been marked as such or are not actually used.

How high are the costs of a warning?

In the event of a justified warning, the question then arises as to how much the the amount of the costs to be reimbursed to the price maintenance trustee. are to be reimbursed.

The price maintenance trustees demand in the context of their warning letters on the basis of the of the German Lawyers' Fees Act (RVG), based on a value in dispute of 10,00.00, a 0.75 business fee in accordance with §§ 13, 14 RVG plus and statutory value added tax, an amount of € 521.82. €.

Can price maintenance trustees only charge a warning fee?

The Higher Regional Court of Frankfurt am Main (OLG Frankfurt a.M., judgement of 24.4.2007, 11 U 41/06) held that the provisions of the Lawyers' Fees Act do not apply to price fixing trustees. are not applicable. In the opinion of the OLG Frankfurt am Main trustees are only entitled to a lump-sum warning fee as reimbursement of expenses which is the actual expenses incurred by the price maintenance trustee in issuing a warning warning of price fixing violations. The OLG Frankfurt am Main has considered an amount of € 203.00 to be justified.

Calculate Are the costs of the warning calculated according to the German Lawyers' Fees Act (RVG)?

Other courts, however, allow the price maintenance trustees a claim for reimbursement on the basis of the Lawyers' Fees Act (Rechtsanwaltsvergütungsgesetz). The Oldenburg Regional Court awards the price-fixing trustees on the basis of the Lawyers' Fees Act (RVG), based on a value in dispute in the amount of of € 10,00.00, a 0.75 business fee in accordance with §§ 13, 14 RVG plus plus a lump sum for expenses and statutory value added tax, i.e. an amount of of € 521.82.

Regional Court Wuppertal: Costs of the warning amount to € 147.56

The Regional Court of Wuppertal now also had to decide the amount of the costs to be reimbursed to a price maintenance trustee. costs of a warning notice. In the case to be decided, a commercial seller, who only occasionally sells books, had mislabelled a new book on eBay. labelled.

The Regional Court of Wuppertal ruled in this case that ruled that for the calculation of a claim for reimbursement of expenses of the trustee can in principle be based on the scale of fees of the RVG. can be used as a basis. However, in the case of only one book sold book sold is only € 1,000.00.

Based on a value of the object in the amount of 1,000.00 €, a 1.3 business fee, plus a flat rate for expenses and statutory VAT, a price maintenance trustee is entitled to a refund of a claim for reimbursement in the amount of € 147.56.

In this regard, the Regional Court of Wuppertal states:

"The amount of the The amount in dispute must be based on the economic interest of the plaintiff. plaintiff's economic interest. However, it cannot be disregarded that the office of the general interest of the book trade is not compatible with the trustee, which is in the general interest of the book trade, is not compatible with the impression that the trustee is primarily pursuing his own economic interests. economic interests. Concerns about an excessive cost burden on smaller traders by issuing warnings should therefore be countered by charging the trustee the RVG rates, but with greater differentiation in the determination of the amount in dispute. more differentiated. While the general underpricing of a bestseller by a dealer with a strong market position a one-off infringement by an assembler in the case of a seldom-demanded reference book is not seldom in demand is of lesser importance. In this respect the commentary literature for the incorrect price labelling of a single book. a value in dispute of only 1,000.00 euros for the incorrect price labelling of a single book (Wallenfels/Russ). (Wallenfels/Russ, loc.cit., marginal no. 55, 57).

The plaintiffs have only complained about a one-off price fixing infringement by the defendant for a single book. single book. No other infringements by the defendant were alleged. alleged. The specific book itself is not a bestseller in general demand. bestseller in general demand. Although it may have been offered via eBay to a large number of unspecified unspecified persons via eBay, on the other hand it cannot be disregarded that the that the defendant's business model does not fit the image of a strong bookseller. corresponds to the image of a bookseller with a strong market position. In this situation the Chamber considers a value of 1,000.00 Euros to be appropriate. Even assuming a 1.3 Euro business fee - which the plaintiffs had not claimed - there would be a fee - which was already not claimed by the plaintiffs - there would only be a claim for reimbursement in the amount of 147.56 Euro (104.00 Euro business fee, 20.00 Euro flat rate for expenses, 23.56 Euro VAT). Added to this are the expenses for the test purchase.....".

Source: Wuppertal Regional Court, Judgment of 09.08.2019, Case No. 11 O 24/19

GoldbergUllrich Attorneys at Law 2019

Lawyer Michel Ullrich, LL.M. (Information Law)

Specialist lawyer for information technology law      

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