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Case detail



Directive article Article 2 (b)
Article 2 (d)
Article 6 1. (g)
National ID 13 U 173/09
Country Germany Decision date 09/09/2010
Common name Decision type Court decision in appeal
Court Oberlandesgericht - OLG (Celle) Plaintiff(s) not disclosed
Court translation Higher Regional Court (Celle) Defendant(s) health insurance company - name not disclosed
Subject trader
Keywords advertisementhealth and safetymisleading statementstrader

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Headnote

Misleading information of a compulsory insurance health fund is subject to unfair competition law, because the fund is a "trader" and such information constitutes "commercial practices" according to the UWG (the German Unfair Competition Act).

Facts

The defendant, a compulsory insurance health fund, put the following information on its website: "Everyone who is leaving us now, is bound to its new insurance for the next 18 months! Thus, you will miss attractive offers which will be launched by us in the coming year and you will eventually have to pay more in the end, if your new health fund does not get by with the available money and therefore has to claim an additional fee".

The plaintiff requested injunctive relief for this commercial practice.

Legal issue

(1) Does the respective information on the website of the defendant constitute a commercial practice under unfair competition law?

(2) Are compulsory insurance health funds "traders" in the sense of article 2 (b) of the UCP Directive?

Decision

 

According to recital 7 of the UCP Directive, the Directive addresses commercial practices directly related to influencing customers' transactional decisions in relation to products. Therefore, the statements on the defendant's website constitute a commercial practice in accordance with the UCP Directive, as the statements are directly related to the customers' decision whether to change their health insurance company. 
 
The court found that the information on the defendant's website qualifies as a commercial practice, pursuant to article 2.d of the UCP Directive (and therefore similar to commercial practices in the sense of § 2 Nr. 1 of the UWG (the German Unfair Competition Act)).
 
The court furthermore considered the defendant to be a trader in the sense of article 2.b of the UCP Directive with respect to the disputed activity. Even though the defendant is part of the federal administration as a corporate body under public law and grants publicly regulated health care, the information on its website was not for social purposes, but instead for economic / business purposes (as it wanted to prevent its paying members from changing to another fund).
 
The court also found that the information on the defendant's website constituted a misleading commercial practice according to § 5 I Nr. 7 UWG, as it misleads the consumers about their right to terminate a contract with a compulsory insurance health fund for a period of one month after they raised their contributions.

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Result

The plaintiff's request was granted.

Additional information

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