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Case detail



Directive article Article 5 1.
Article 5 2.
Article 5 3.
National ID 6 U 26/08
Country Germany Decision date 16/05/2008
Common name Decision type Court decision in appeal
Court Oberlandesgericht - OLG (Köln) Plaintiff(s)
Court translation Higher Regional Court (Cologne) Defendant(s)
Subject contract law
Keywords terms & conditionscontract lawunfair competition

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Headnote

General terms and conditions do not qualify as legal norms, and can therefore not constitute a violation of § 4 No. 11 (regarding market conduct rules) of the German Unfair Commercial Practices Act. 

Facts

The defendant used an invalid clause in its general terms and conditions, which stated: "The company reserves the right to provide customer data to other companies in a legitimate way for the purpose of the dispatch of information and reserves the right to use customer data for its own promotional purposes."

The plaintiff requested a cease-and-desist order for the use of this clause, based on  § 4 No. 11 UWG (the German Unfair Competition Act) in connection with §§ 305 et seq. BGB (German Civil Code).

 

§4 No. 11 UWG can be invoked in case of a violation of a law regulating the market conduct. Therefore, the use of an invalid clause within general terms and condition could constitute a violation according to § 4 No. 11 UWG if general terms and conditions -- or §§ 305 et seq. BGB, which regulate general terms and conditions -- qualify as a legal norm which regulate market conduct.

Legal issue

Are invalid general terms and conditions able to constitute a violation of § 4 No. 11 UWG (the German Unfair Competition Act)?

Decision

 

(1) Invalid general terms and conditions are not able to constitute a violation of § 4 No. 11 UWG, because they do not have the required quality of legal norms, and are therefore not market conduct rules in the sense of § 4 No. 11 UWG.
 
(2) §§ 305 BGB also does not constitute a legal norm that regulates market conduct (as its purpose is not the protection of the interests of consumers).   

  URL Decision Decision full text
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EN N/A

Result

The plaintiff's request was denied with regard to the German Unfair Competition Act, but granted on the basis of other German law regulations.

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