02. Feb 17

Competition law: Mandatory information in real estate advertising

Anyone who publishes real estate adverts without the requisite information relating to the energy performance certificate is in breach of competition law. That was the verdict of the Oberlandesgericht (OLG) Hamm [Higher Regional Court of Hamm].

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: The Oberlandesgericht Hamm held in two recent rulings that sellers, landlords and lessors are in breach of competition law if they publish a real estate advert in relation to a property with an energy performance certificate without including the mandatory information pursuant to the German Energieeinsparverordnung (EnEV) [Energy Saving Ordinance]. Real estate agents also need to watch out; they may be prohibited from publishing adverts for rental accommodation that do not include details regarding the type of energy performance certificate and the year of construction as stated in said certificate, or sales ads that omit to mention the main source of energy. That was the verdict of the OLG Hamm in its rulings of August 4, 2016 (Az.: 4 U 137/15) and August 30, 2015 (Az.: 4 U 8/16).

In the proceedings in question, an environmental and consumer protection organization had brought a legal action against two agents for failing to include the necessary information in their real estate adverts in accordance with the Energieeinsparverordnung. An energy consumption certificate was available for each of the advertised properties. The claimant organization took the view that they had thus behaved in an anti-competitive manner.

The 4th Civil Division granted the application for an injunction, ruling that the real estate adverts did not meet the requirements of the EnEV because they did not include the required mandatory information.

It held that the wording of sec. 16(a) of the EnEV does not require agents to divulge this information, with the provision only citing sellers, landlords and lessors as being affected by the obligation to inform and there being no explicit references to agents in the legislation. Whether this provision nonetheless applies to them has yet to be clarified by Germany’s Federal Supreme Court, the Bundesgerichtshof (BGH). Notwithstanding this, the Court went on to say that the agents in both cases had violated Germany’s Gesetz gegen den unlauteren Wettbewerb (UWG) [Unfair Competition Act]. By withholding essential information from consumers in the adverts despite this information being crucial to reaching a decision regarding the transaction, they had acted in an anti-competitive manner. The Court concluded that in the absence of this information consumers might have come to a different decision than would have otherwise been the case.

The consequences of violating competition law include formal written warnings, injunction suits and damages claims. Lawyers who are versed in the field of competition law can assist in enforcing or fending off claims.

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