11. Jul 16

Declaration of discontinuance tied to a condition subject to strict requirements

Declarations of discontinuance are a possible consequence of violations of competition law. They can be tied to a condition, but for this to happen strict requirements need to be met.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: Among the fundamental pillars of German competition law are the Gesetz gegen den unlauteren Wettbewerb (UWG) [Unfair Competition Act] and the Gesetz gegen Wettbewerbsbeschränkungen (GWB) [Act Against Restraints of Competition]. These are supposed to ensure fair competition among market participants with a view to protecting consumers.

Infringements of competition law, e.g. due to misleading advertising, can give rise to serious consequences, including formal written warnings, interim injunctions, inunction suits and damages claims. It is also possible for declarations of discontinuance tied to a condition to be issued. However, these are subject to strict requirements in order to exclude the risk of the behaviour or actions in question being repeated. This comes from a ruling of the Oberlandesgericht Stuttgart (OLG) [Higher Regional Court of Stuttgart] dated December 21, 2015 (Az.: 2 W 46/15).

In the instant case, the defendant had promoted a form of analysis that is not clearly supported by scientific evidence. She was subsequently given a formal written warning on account of impermissible, misleading advertising and issued a declaration of discontinuance subject to a restriction. She supplemented the declaration of discontinuance with the words: “sofern nicht - sinngemäß - darauf hingewiesen wird, dass die Aussagekraft der festgestellten Werte schulmedizinisch umstritten ist” (except as - effectively – indicated that the validity of the data in question is disputed from the perspective of conventional medicine).

According to the OLG, this proviso meant that the risk of the infringement of competition law being repeated had not gone away. It stated that while declarations of discontinuance could be linked to a condition, this kind of a restriction has to satisfy strict requirements. This was not the case here. It was said that the condition did not say anything about the nature of such an indication or where it could be found, and was all in all too vague, as the required indication could be located separately from the promotional statement itself pursuant to the condition. The Court went on to say that the risk of this misleading advertising being repeated could not therefore be ruled out.

To prevent infringements of competition law from occurring – even unwittily – one ought to consult lawyers who are competent in the field of competition law. This equally applies when fending off or enforcing claims in response to violations of competition law.

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