In a judgement dated 14 March 2025 – 7 HK O 50/23, which was obtained by HÄRTING Rechtsanwälte, the Regional Court of Trier ruled that a cease-and-desist declaration obtained by the IDO Interessenverband für das Rechts- und Finanzconsulting deutscher Online-Unternehmen e.V. (IDO) could be effectively terminated due to abuse of rights. Exceptionally, this cancellation also had retroactive effect on a contractual penalty that had already been claimed but not yet paid. The court found that the IDO may not demand contractual penalties because it lacks the authority to issue warnings as long as it is not entered in the list of trade associations of the Federal Office of Justice.
Background
The IDO was the most active warning association until the UWG reform by the Act to Strengthen Fair Competition of 2 December 2020. This came to an end with the requirement that trade associations must be entered in the list of qualified trade associations of the Federal Office of Justice (BfJ) in accordance with Section 8 (3) No. 3 UWG in order to be allowed to issue warnings. The IDO has not yet been entered in this list.
In May 2021, the association issued the warning against our client, which has now become the subject of the legal dispute before the Trier Regional Court. Our client, a medium-sized company, offered animal feed without a basic price and was issued a warning by the IDO. It submitted the IDO’s pre-formulated cease-and-desist declaration unchanged and paid the warning costs.
The problem with base price violations on platforms is that they cannot be completely avoided due to the software. It is therefore not surprising that our client repeated the basic price offence a few months later, whereupon she was confronted with a contractual penalty claim for the first time. This was followed by two further contractual penalty claims, which she handled on her own without the help of a lawyer. By the summer of 2023, she had paid a total of EUR 16,537.05 to the association.
Pre-trial dispute over the base price per 100 g
When the IDO demanded a fourth contractual penalty in October 2023, the client turned to us and learnt of the many court decisions that had in the meantime certified that the IDO had acted in an abusive manner. We then rejected the 4th contractual penalty claim for our client because she had stated a base price, albeit a base price per 100g. At the time of the warning in May 2021, this had still been permissible under Section 2 (3) sentence 2 PAngV aF and only became impermissible as a result of the reform of the PangV in May 2022. We declared the cancellation of the cease-and-desist agreement and alternatively terminated it for all known reasons, which probably led to the IDO’s failure to be entered in the BfJ list. As a legal consequence of the cancellation, we demanded the repayment of EUR 16,537.05.
The IDO rejected the claims and brought an action before the Trier Regional Court. We counterclaimed for repayment of the amounts paid and, in the alternative, for a declaration that the cancellation had been validly declared.
Decision of the court on the claim
The Regional Court dismissed the claim and ruled that the contractual penalty had not been forfeited, stating that
‘The indication of products with an incorrect reference value in the basic prices does not constitute an identical infringement in this respect, using the core theory. The defendant agreed not to advertise without indicating a basic price. In the present case, however, the price per unit of quantity and the total price were each stated unambiguously, clearly recognisable in close proximity and clearly legible, as required in the obligation to cease and desist. The defendant only selected the unit of measure that is now incorrect in accordance with Section 4 (1) PAngV. However, there is no indication from the wording of the obligation to cease and desist that an indication of the basic price with an incorrect unit of measure should also be covered. In particular, there is no reference to the PAngV or a formulation that advertising with an incorrect base price should be avoided.
Contrary to the plaintiff’s opinion, this provision of the core of the obligation to cease and desist also does not mean that violations of the law remain unpunished. It was a violation of the PAngV by the defendant, which would have led to a claim under Section 8 (1) UWG.
Furthermore, the court ruled that the IDO should not have demanded a contractual penalty because it was no longer authorised to issue warnings due to the lack of entry in the BfJ list:
Even if the termination is only effective for the future, the assertion of a contractual penalty forfeited prior to the declaration of termination may constitute an abuse of rights within the meaning of Section 242 BGB. According to the case law of the Federal Court of Justice, this is always the case if the creditor – as in the present case – is obviously no longer authorised to sue and could no longer obtain an injunction (BGH, judgement of 26 September 1996 – I ZR 265 265). September 1996 – I ZR 265/95 -, para. 45, juris – Altunterwerfung I; BGH, judgment of 6 July 2000 – I ZR 243/97 -, para. 19, 20, juris – Altunterwerfung IV; OLG Cologne, judgment of 21 June 2023 – I-6 U 147/22 -, para. 27, juris). However, the plaintiff would no longer have been able to obtain an injunction at the time of the infringement, as the legal standing of a competition association since autumn 2021 requires that an entry has been made in the list of qualified trade associations pursuant to Section 8b UWG. However, the plaintiff is not registered.
An overall assessment of all circumstances is not necessary in this respect. Rather, according to the case law of the BGH, any assertion of contractual penalties is an abuse of rights if there is no longer any legal standing (see above). The BGH did require an overall assessment in its decision of 7 March 2024 (BGH, judgement of 7 March 2024 – I ZR 83/23 -, juris). However, in the case decided there, there was precisely no possibility of termination at the time of the breach of the cease-and-desist declaration, as the breach occurred in March 2021, i.e. at a time when the plaintiff there was still entitled to sue.
Decision of the court on the counterclaim
The defendant was awarded attorney’s fees in the amount of EUR 1,751.80 under Section 8c (3) sentence 1 BGB. Otherwise, the counterclaim for reimbursement of the contractual penalties paid was dismissed due to the lack of grounds for avoidance.
However, the auxiliary counterclaim for a declaratory judgement that the IDO was no longer entitled to any future rights under the cease-and-desist agreement due to the termination was successful.
Conclusion
Companies that have issued a cease-and-desist declaration should check whether they can terminate it or even contest it.
A current contractual penalty claim by the IDO should be checked to see whether it can be objected to as an abuse of rights in accordance with Section 242 BGB as long as the IDO is not entered in the BfJ’s list of qualified trade associations.
The judgement is not final. The IDO has lodged an appeal.