Enforcement fiche for GermanyB a c k
|I. ADMINISTRATIVE ENFORCEMENT|
|Which administrative mechanisms are available to enforce the UCP Directive?||
Unlike other Member States of the EU, Germany does not fight unfair commercial practices through state bodies with the help of administrative law, but through competitors and associations with the help of civil law. On the basis of the positive experiences with legal action brought by associations, the German legislator opted for a twofold system. The Federal Office of Consumer Protection and Food Safety (BVL) is the responsible office for the new administrative law procedure (Responsibilty according to the German Consumer Protection Enforcement Act "VSchDG", which implements Directive 2006/2004/EC). In case of committed or threatened consumer right infringements, the BVL can 1) demand information; 2) access business premises during normal business hours and/or 3) require to refrain from infringements of consumer rights. This includes the acts implementing the UCP Directive. In addition, the BVL is the central liaison office for the cooperation with the Commission and the competent administrations of other EU-member states. A farther part of the German system are voluntary boards of conciliation for violations of fair competition. In keeping with a long-standing tradition of voluntary boards of conciliation established by commercial professional associations, the boards for unfair competition are set up by regional Chambers of Trade and Commerce. These boards are specifically responsible for claims under the Unfair Competition act (UWG), including consumer rights under Directive 2005/29/EC. Entitled to bring the matter before the Voluntary Board of Conciliation are consumers, competitors and associations alike. The boards aim at a settlement on an amicable basis, without being courts of arbitration with the power to make final decisions. The significance of these voluntary boards results from the fact that the limitation is restrained by the invocation of the board for the duration of the procedure and that court proceedings are restricted.
|Who can file administrative complaints?||
Infringements are pursued ex officio by the BVL. In addition, the general public can file complaints (aside from the right of competitors, associations, qualified entities, Trade associations and Chambers of Industry and Commerce to initiate proceedings in front of the Voluntary Board of Conciliation).
|Do any specific procedural requirements apply to filing administrative complaints?||
No specific requirements or limitations apply.
|Do the administrative authorities have an obligation to investigate the complaint?||
Yes, due to general administrative principles.
|Are there any specific requirements regarding the provision of evidence to the competent authorities?||
|II. ENFORCEMENT THROUGH COURT ACTION|
|Which court actions are available to enforce the UCP Directive?||
§ 12 UWG provides for a specific cease-and-desist procedure. In addition, a general claim for civil damages can be filed.
|Who can start a court action?||
Competitors, associations, qualified entities, Trade associations and Chambers of Industry and Commerce.
|Can court actions be initiated by competitors?||
|Can the case be handled through an accelerated procedure?||
Yes, according to the general German civil procedural rules the respective claimant can file a preliminary injunction for cease and desist according to Sec. 935 et seq. of the German Code of Civil Procedure (ZPO) in case the infringement has been recent and a subsequent infringement would result in a defeat of the claimant's rights (so called "Dringlichkeit"). In unfair competition procedures this requirement of "Dringlichkeit" is assumed according to § 12 II UWG, meaning that this assumption has to be refuted by the behaviour of the claimant (e.g. hesitant behaviour of the claimant to file for preliminary injunction despite its knowledge of the infringement).
|Are there any specific requirements regarding the provision of evidence to the court?||
§ 5 IV UWG and Annex (no.5) contain a reversal of the burden of proof. In addition, German jurisdiction eases the burden of proof in favour of the claimant if his lack of knowledge of the facts is justifiable.
|What are the possible civil sanctions and remedies for the infringement of the UCP provisions?||
Civil sanctions range from removal/cessation of the infringement and publication of the court ruling to damages and skimming of profits.
|What are the possible criminal sanctions for the infringement of the UCP provisions?||
Only infringements of §§ 16 - 19 UWG are punishable with imprisonment for up to 5 years or a criminal fine depending on the severity of the offence. Only § 16 II UWG (prohibition of progressive customer advertising) has a direct link to the UCP provisions, as the UCP Directive qualifies so called pyramid schemes as unfair commercial practices (Annex I no. 14 of the UCP Directive).
|What are the possible administrative sanctions for the infringement of the UCP provisions?||
The Federal Office of Consumer Protection and Food Safety (BVL) can require to refrain from acts found infringing consumer rights. Culpable contraventions are treated as administrative offences. The cessation of the infringement can be enforced by a penalty payment.
|What are the contractual consequences of an administrative order or a judgement relating to an unfair commercial practice on an individual transaction?||
In most cases, cease and desist procedures are initiated by a competitor of the infringer. The individual transaction with the consumer will therefore not be affected by a cease and desist decision since it only produces effects between the parties to the procedure. If a consumer files a civil law suit against his contractual partner, the contract might be declared void due to an infringement of UWG regulations if this is beneficial to the consumer.
|How can consumers get redress/compensation (e.g. through collective actions)?||
German law does not allow collective actions. Consumers have to file a claim for civil damages in accordance with general principles of German tort law.
|Can the administrative authorities or the courts require the publication of their decisions?||
§ 12 III UWG provides that the court can authorize the claimant to publish the decision at the expense of the infringer if the claimant can demonstrate a legitimate interest.
|IV. OTHER TYPES OF ENFORCEMENT|
|Are there any self-regulatory enforcement systems in your jurisdiction that deal with aspects of the UCP Directive?||
Yes, the right of competitors, associations, qualified entities, Trade associations and Chambers of Industry and Commerce to initiate proceedings in front of the Voluntary Board of Conciliation and to file claims against the infringer.
|Are there any mediating services that deal with aspects of the UCP Directive (e.g., an ombudsman)?||
Yes, the Voluntary Board of Conciliation (see above).