In its judgement of 3 April 2020 (case no. 4 U 29/24), the Higher Regional Court of Hamm ruled that an age check must also be carried out for refill containers for e-cigarettes sold by mail order. It also ruled on the requirements for the presentation of the competitor position in the warning letter.
A. Age verification also for empty refill containers
The first question was whether empty refill containers are also subject to the mandatory age check under Section 10 (3) and (4) JuSchG in the mail order business. This could be doubted because these do not contain any addictive substances per se. According to the argument, an age check would be carried out at the latest when the e-liquids are purchased anyway.
The Hamm Higher Regional Court rejected this argument outright. The argument was on shaky ground from the outset, as Section 10 (3) JuSchG expressly refers to “tobacco products and other nicotine-containing products and their containers”. The court also had no room for interpretation here due to the underlying EU Directive 2014/40/EU. In Art. 2 No. 16, the definition of “electronic cigarettes” includes “any component of the product, including a cartridge, a tank”. The Hamm Higher Regional Court no longer needed to look at the legislative documents, which clearly state “The products are available both as disposable products and as refill products, so that the products and refill containers for electronic cigarettes and electronic shishas (containers) are to be included in the bans.” So far so unspectacular.
B. Presentation requirements in the warning letter
More exciting is what the Higher Regional Court of Hamm has to say with regard to the presentation requirements in the warning letter. The issue here was the presentation of the active legitimation, i.e. the authorisation to issue a warning. Pursuant to Section 8 (3) No. 1 UWG, only a competitor “who sells or requests goods or services to a not inconsiderable extent and not only occasionally” has this authorisation. This addendum was only added to the law in 2021 in order to prevent warning letter abuse by competitors who are not actually economically affected.
The Higher Regional Court of Hamm has now drawn conclusions from this: In the opinion of the court, blanket references to the sale of products in a similar product category are no longer sufficient. Furthermore, the relevance and frequency must not only refer to any products in the claimant’s business operations. Instead, it must be demonstrated that “the serious and sustained business activityisnot only general, but specific to the goods or services sold or demanded by the warned party“. This proof could be provided, for example, with business figures in the specific product segment, but not with general business figures for the company.
This is an interesting tightening of the procedural requirements for a successful warning. The Higher Regional Court of Hamm justifies this with a material tightening, which is certainly open to doubt. The Federal Court of Justice formulates the same standard much more cautiously: “However, according to the reasoning behind the law and in view of the necessary effectiveness of the enforcement of fair trading law, no excessively high hurdles may be placed on the scope and duration of the business activity.” It remains to be seen whether the opinion of the Higher Regional Court of Hamm will prevail; ultimately, it is also a question of the specific court’s judgement as to whether the explanations were sufficient (Section 286 ZPO). The fact that generally comprehensible business figures and at least the advertising and distribution of a relevant product were not sufficient to convince the court in this case does not necessarily have to be generalised.
C. Conclusion:
As the recipient of a warning letter in particular, you should keep this decision in mind. If the information provided is too generalised, this can quickly save you warning costs. These are only to be reimbursed if the warning clearly and comprehensibly states the entitlement to claim (Section 13 para. 3 in conjunction with para. 2 no. 2 UWG).