In the years 2002 to 2006, the nine accused marketed training seminars on the subjects of personality development and motivation, time management, rhetoric and sales at a price of 3,200 euros through a Leipzig company. At the same time, they also advertised the possibility of working as a sales representative in the company; they offered the prospect of earning at least 550 euros gross for each seminar they successfully arranged. The advertising measures were primarily directed at people who were looking for work or earning opportunities at the weekends; they were invited to a presentation event on the basis of a newspaper advertisement offering a driver's job. The defendants, who worked together in different functions in the sales organisation, demanded the booking of a seminar as a prerequisite for a sales job. Only after payment of the seminar costs was the employee contract handed over to the recruited persons. In total, at least 4,605 people were recruited in this way during the period mentioned; 3,959 seminars were distributed.
The Leipzig Regional Court found the defendants guilty of progressive customer advertising pursuant to Section 16 (2) UWG and imposed prison sentences on them - with the exception of one defendant who was sentenced to a fine. The execution of the prison sentences imposed was only partially suspended.
The 5th (Leipzig) Criminal Senate of the Federal Supreme Court dismissed the appeals of the defendants as unfounded by order. It considered the employees recruited for typical chain contracts to be consumers within the meaning of Section 16 (2) UWG. The point in time at which they were first approached by the sales concept of the organiser and were to be influenced by the advertising measure was to be taken into account. At this stage, they had not yet decided to take up self-employment. Since the offence under § 16 para. 2 UWG is a corporate offence (§ 11 para. 1 no. 6 StGB), it is sufficient for the completion of the offence if the advertising activity was started and this conduct was to lead directly to the booking of a seminar. The Regional Court had also rightly ruled out a prohibition error. It is true that the courts had different decision-making practices regarding the system pursued by the defendants. However, the defendants themselves considered criminal liability to be probable. Therefore they included in the written contracts - contrary to the truth - the clause that there was no connection between the cooperation in sales and the booking of the seminar.
However, some of the defendants were successful with their appeals insofar as the Federal Supreme Court also suspended the execution of the prison sentences imposed on the - all unpunished - defendants against whom the Regional Court had pronounced unconditional prison sentences.
Order of the Federal Supreme Court of 24 February 2011 - 5 StR 514/09
Previous instance: Regional Court Leipzig - 11 KLs 208 Js 22395/03 - Judgment of 26 March 2009
Source: Press release of the BGH
Goldberg Attorneys at Law 2011
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: info@goldberg.de
