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Case detail



Directive article Article 2 (b)
Article 2 (d)
Article 3 1.
National ID I ZR 170/10
Country Germany Decision date 18/01/2012
Common name Decision type Supreme court decision
Court Bundesgerichtshof - Karlsruhe Plaintiff(s) Zentrale zur Bekämpfung des unlauteren Wettbewerbs (Central Agency against Unfair Competition Practices)
Court translation German Federal Supreme Court - Karlsruhe Defendant(s) Betriebskrankenkasse (BKK) (statutory health insurance company)
Subject trader
Keywords B2Cmisleading advertisingmisleading omissionstrader

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Headnote

The fact that a statutory insurance company warns its members to change insurance company as a new insurer could demand additional premiums later on and that it does not mention the fact that policyholders have a special right of termination in the event additional premiums are demanded, constitutes an unfair commercial practice, hence the UCP Directive applies to a statutory insurance company organized under public law.

Facts

The defendant, a statutory health insurance company organized under public law, published a statement on the company's website stating that members who leave that insurance company in order to sign a contract with a different insurance company will then be bound to the new company for the following 18 months during which the previous member would not be able to benefit from attractive offers that the defendant will offer in the next year. Furthermore, the defendant warned that if members should change to another insurance company they might pay more in the end, if the new insurance company does not get by with its assigned funds and therefore charges additional premiums. 

The plaintiff sued the defendant for cease and desist of such statements according to Sections 3 and 5, 1 no. 7 UWG arguing that the defendant did not mention the material information that policyholders have a special right of termination in the event of an imposition of an additional payment by the insurer.

The defendant argues that the provisions of the UWG are not applicable as article 2 (d) of the UCP Directive requires a commercial practice by a trader in the sense of article 2 (b) of the UCP Directive. This would not apply to the defendant as being a statutory body under public law it would not act with a view to making a profit.  

The court of first instance granted the plaintiff's request and ordered the defendant to stop the respective misleading advertising. The defendant's appeal was dismissed in the second instance.

In the third instance the court suspended the proceedings and referred the case to the European Court of Justice.
 

Legal issue

Does the fact that a statutory insurance company warns its members to change insurance company as a new insurer could demand additional premiums later on and that it does not mention the fact that policyholders have a special right of termination in the event additional premiums are demanded, constitute an unfair commercial practice, hence does the UCP Directive apply to a statutory insurance company organized under public law?

Decision

The court sees an infringement of Sections 3, 1 and 5, 1 sentence 2 no. 7 UWG but requires the opinion of the European Court of Justice if the UWG applies to the actions of the defendant according to article 3, 1 in conjunction with article 2 (d) of the UCP Directive.

The court suspended the proceedings and referred this question to the European Court of Justice.
 

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Result

The European Court of Justice found (C-59/12) that the UWG is indeed applicable to advertisements of the defendant, as a statutory body under public law which is entrusted to meet needs in the general interest, being the administration of a statutory health insurance system, falls under the personal applicability of the UCP Directive.

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