Breach of law according to § 13 para. 4 UWG and noticeability according to § 3a UWG

Background

The starting point of the legal dispute was a competition law warning of infringements of the Feed Regulation (EC) No. 767/2009 (hereinafter: “FMVV”). Health claims and labelling requirements were criticised. For reasons of procedural economy, the defendant submitted a cease-and-desist declaration with regard to the health claims, so that the court dispute only revolved around four labelling requirements.

On labelling obligations in electronic commerce according to §§ 13 para. 4, 13a para. 2 UWG

a) Allegation of the plaintiff

With regard to the first two points, the defendant was accused of falsely labelling one product as complementary feed, although it was only feed material according to Art. 15 a) in conjunction with Art. 3 g) FMVV. Mandatory information for feed materials from plants according to Art. 16 para. 1 b) in conjunction with annex V of the FMVV was also missing. Both infringements had been committed online as well as on the packaging.

b) Objection of the defendant

We raised the objection of abuse of rights on behalf of the defendant because the plaintiff had made inadmissible claims. In our opinion, the plaintiff should neither have demanded warning costs (cf. § 13 para. 4 no. 1 UWG) nor a submission subject to a penalty (cf. § 13a para. 2 UWG), because the infringements in question were committed in electronic commerce according to § 13 para. 4 no. 1 UWG. In this regard, it is irrelevant that the information was also missing on the physical packaging, because the violations were initially detected online.

c) Decision of the Regional Court of Trier

The court rejected the objection of abuse of rights and justified this by stating that there were already no infringements in electronic commerce within the meaning of § 13 para. 4 no. 1 UWG. The mandatory information in dispute was information that, according to Art. 14 FMVV, must primarily be provided on the physical product packaging which was also missing. The additional obligation to provide this information in the online offer only existed on the basis of a reference provision, in this case Art. 11 para 3 FMVV. In such a case, there was no infringement committed in electronic commerce under § 13 para. 4 no. 1 UWG. It was therefore permissible for the plaintiff to demand both compensation for the costs of the warning notice and a penalty-based cease-and-desist order in its warning notice.

The noticeability within the meaning of § 3a UWG

a) Allegation of the plaintiff

With regard to the other two allegations, the defendant had indicated on the product packaging, on the one hand, a day-specific best-before date (hereinafter: “BBD”), instead of a batch number according to Art. 15 d) FMVV, and, on the other hand, the URL of his website, instead of a telephone number or another appropriate means of communication (e.g. e-mail) according to Art. 19 FMVV.

b) Objection of the defendant

We argued that the two infringements were not noticeable under § 3a UWG. Furthermore we stated, that the defendant had justifiably relied on the assessment of the competent authority, which had previously classified both the indication of a BBD and the website indication as sufficient in terms of the FMVV standards at issue.

c) Decision of the Regional Court of Trier

This time, the court found in favour of the defendant and dismissed the claims for lack of noticeability within the meaning of § 3a UWG. With regard to the missing batch number, the court stated:

“According to recital no. 17 FMVV, the purpose of Art. 15d FMVV is traceability and control purposes. However, these considerations are also sufficiently ensured in the case of the indication of the best-before date. This is particularly supported by the comparison with food law, where the indication of the identification number or the lot is dispensable if the best-before date is indicated. The trader’s conduct is thus not capable of preventing the average consumer or other market participants from recognising the advantages and disadvantages of a commercial decision, weighing them up and making an ‘effective choice’.”

Regarding the indication of the website, the court stated:

“It is a matter of ease for an average consumer – of which the board is also composed, which is why it can assess this question from its own experience – to determine the defendant’s email address or a free means of communication, by entering the homepage in the internet browser, so that the infringement is not of considerable gravity and, ultimately, not noticeable.”

Conclusion

The arguments of the Trier Regional Court on the existence of infringements of information and labelling obligations in electronic commerce or telemedia according to §§ 13 para. 4 no. 1, 13a para. 2 UWG can be applied to warning letters in other industries, in particular to online trade of pre-packaged food, as well.

Especially violations of information obligations under Art. 9 para. 1 of Regulation (EU) No. 1169/2011 (hereinafter: “LMIV”) are frequently subject to warnings. According to Art. 12 para. 2 LMIV, this mandatory information must be provided directly on the packaging or label. If pre-packaged food is offered for sale online (or in distance selling), this information must also be made available there (cf. Art. 14 para. 1 a) LMIV).

According to the logic of the Regional Court of Trier, infringements of the information requirements of Art. 9 para. 1 LMIV established online cannot in principle be infringements under §§ 13 para. 4, 13a para. 2 UWG. Competitors may therefore unhesitatingly issue warning notices for such breaches of law and demand both warning costs and a cease-and-desist declaration with a penalty clause.