EU Consumer Rights Directive

RL 2005 / 29 / EG (and RL 2024/825)

• Protects against unfair business practices affecting consumer economic interests
• Ensures a high level of consumer protection
• Harmonizes national laws to avoid obstacles for businesses entering cross-border markets and consumer legal uncertainty
• Protects against influencing consumer business decisions
• Increases legal certainty for consumers and businesses
• Protects consumer freedom of choice from aggressive business practices
• Primarily protects consumers directly, but may indirectly protect competitors
• Member states can issue regulations to protect competitors if they comply with Community law
• Does not address good morals and decency, as they vary across cultures and member states
• Requires businesses to provide consumers with basic information for informed business decisions when prompting a purchase
• Community law information requirements are always essential
• Uses the "reasonably well-informed, observant, and critical average consumer" as a fictional standard, determined by the group addressed, especially with particular vulnerabilities like age or disability

RL 2024 / 85 (Supplement to the above RL, focusing on sustainability and environmental protection)

• Aims to protect consumers and the environment within a functioning internal market
• Businesses need to provide clear, relevant, and trustworthy information for informed and sustainable purchasing decisions
• Provides rules on the transparency and credibility of sustainability labels, labeling requirements for durability and repairability, and preventing greenwashing

RL 2006 / 114 / EG (Misleading and Comparative Advertising)

• Harmonizes to ensure the functioning of the internal market
• Prevents misleading and impermissibly comparative advertising that distorts competition
• Sets conditions for reliable comparative advertising
• Ensures fairness in competition among competitors
• Applies regardless of whether a contract is concluded, as it affects the economic interests of consumers and businesses
• Comparative advertising is generally allowed if it refers to essential, relevant, verifiable, objective, and typical characteristics
• Requires recognition of the competitor and permits the use of trademarks, trade names, and distinguishing marks as long as the comparison is objective and fair

General Clauses §3 I and §3 II UWG

• The consumer clause from §3 I, II UWG acts as a catch-all provision with further restrictions (§3 I UWG, violating the UGP-RL)
• Requires a business action towards consumers and a violation of professional care from §2 I No. 9 UWG, along with suitability for influencing (based on §3 IV UWG)
• §3 I UWG - General clause and referral to legal consequences are inadmissible if in violation of §3 II, 3 III i.V.m. Annex, 4 to 7 UWG

§3 I UWG Catch-all Provisions

• Serves as a catch-all if a behavior is not covered by §§4 to 5a, 7 UWG
• There is no catch-all provision for §6 UWG, as it is conclusively regulated
• It presents a regulatory gap, unconscionability compared to §§ 4, 5, 5a, 7 UWG, and conflicts with decent practices in trade and commerce
• Certain specific groups of behaviors are considered

Prohibited General Market Impediments

• Exists if an individually fair, yet questionable, competitive behavior alone or in combination with similar actions from competitors creates a serious risk of considerable restriction on the competition
• Requires tangible evidence of a competition-restricting development, hindering numerous companies in their development

Influencing Sales Promoters through Premiums or Similar Incentives

• Consider salesperson’s function, position, and inclination to be guided by the premium
• Consider the premium's worth as an incentive and the expectation of neutral, objective advice to the end customer

Duty of the Public Sector for Neutral and Objective Governance

• The public sector must not appear to recommend or steer demand towards a specific company
• Image advertising is generally allowed as long as the aforementioned principle is not violated

Violation of a Competitive Duty of Care

• Section § 3a UWG is relevant; In the BGH-Decision titled "Youth-endangering Media at eBay," evaluates eBay's responsibility in light of competitive duties of care
• Anyone who creates a risk through their actions in business that third parties violate the interests of market participants protected by competition law can commit unfair competition if they do not limit this risk to a reasonable extent
• Violating a competitive duty of care makes one a perpetrator of unfair business conduct and liable under §3 II UWG
• It implies a duty to remove clear legal infringements from the platform and prevent similar future infringements, limited to what is technically and economically reasonable
• A differentiation between self-made and external content is necessary -> Hybrid-Model
• Platform liability for seller infringements is generally excluded unless there is a uniform appearance
• Critical is whether the operator of a website adopts third-party content in a way that creates liability
• This is when the content demonstrably seems to have come from the site, he is responsible for its content
• However, there is a possibility to violate the traffic regulations if no appropriation is present

Platform Liability

• Liability as a disturber was a solution for the questions of platform liability
• Everyone is liable who willfully and adequately contributed to the impairment of absolute rights
• It is necessary for the platform to prevent the indirect violation of laws in an acceptable way and to violate the expected test regulations
• For this purpose it has to be made clear that the violation was pointed out and that the violation is obvious without requiring any lawful or actual test

Legal Schema

• Review of the business transaction i. V. m §§ 3a-6 UWG
• Exclusion of the liability of the platform because of missing perpetration or participating + violation of an obligation as an obstruction (- platform is not passivlegitimiert)
• Review of the business transaction i. V. m 3 II
  • I. Active legitimation
  • II. Business transaction
  • III. Immediate violation of UWG rules trough third party
  • IV. Violation of general clause
    • 1. Causality between violation and behavior of the intermediaries
    • 2. Violation of competitive business traffic duties
    • a. Precondition of a business traffic duty - elimination after reference
    • b. range: only technically and economically possible
  • V. Passivlegitimation
  • VI. Danger of recurrence

Section §3a UWG (Breach of Law)

• According to §3a UWG, it is illegal to act in contradiction to a law which intends to regulate market behavior to the benefit of market participants and if the violation may noticeably impeach the interests of the consumers, other market participants or competitors
• Covers not only national law, but also the law of the union
• Regulation of market conduct in the interest of market participants
• The regulation regulates behavior in the interest of market participants - in the manner of competition, that it protects the competitive interests of persons offering or requesting products of services
• Nonbinding laws may contain market behavior regulations
• Incident examination of the objective contravention of law is necessary
• There is no conclusive sanctionierung of the violated standard, instead it is applicable
• Normally the standards are realized by its norm apparatus. Not-UWG-Norm violations can be used in §3a ins UWG

Agreements

• Kartellrecht (GWB):
  • The kartellrecht contains conclusive regulations for enforcements and serves particularly other protections – both are basically applicable at the same time, the GWB may not be used by §3a inside the UWG
• Immaterial rights:
  • Trademark - PatentG DesignG Copyright are like noted above
• AGB regulation
  • since BGH 31.5.2012 it is acknowledged that ineffective AGB in the B2C-area is a violation against the UWG and enables censure. It is accepted as market business regulations because the application of ineffective AGB usually contradict the need for trained supervision
• AGB regulation
  • The AGB law has it’s foundation in the Union law. Even competitor may pursue ineffective clauses; the is the case al though ineffective AGB clause are already sanctioned through §1 UKlaG, because of it does not offer entitlement for Mitbewerbern but is aligned on the claim for organization’s
  • A practical need to act against it, because the user of ineffective clause will achieve an advantage towards the law-abiding competitor and with it an illegitimate lead in competition

Legalities

• The contract itself stays in effect even if some elements are void
• The void elements default back to the lawbook

Regulations

• Data laws have typically been enforceable by the UWG, it is however determined that the DSGVO has sufficient enforcements so it has to rely mostly on the EUGH
• What sections of law define market action regulation?
  • Passenger transportation laws
  • Youth protection laws
  • Shop rules
  • Package Guidelines
  • Health Products Advertising
  • Health Product Claims Guidelines

Section §4 Nr. 1 UWG (Humiliation / Disrepute)

• Defensable, due to equality in conception
• Humiliation consists in the reduction of appreciation of the competitor + his company or service in the eyes of the traffic community
• Dishonoring is a increased form and consists of contempt with the shape of a depreciatory value judgement without material foundation
• Does not require one competitor to be distinct. The regulation does also include blanket humiliations of all competitors
• It is also important to be checking if it is a derangement and not just the accentuation of the action

Section §4 Nr. 2 UWG (Blackening)

• According to §4 Nr. 2 Alt. 1 UWG it is untruthful when one, over products, services or the company shares facts which are suited to harm the operation of the company or the credit of the company - when the facts can’t be proven
• Business affiliation
  • Facts are procedures or conditions, there given reality is accessible to the fact evaluation. Valuations impede the exercise of §4 Nr. 2 UWG.

Suitability for Business Damage

• An expression is suited to harm the operation of the company or the credit of the company, when it can entail disadvantages for the profession

Section §4 Nr. 3 UWG (Untruthful Imitation)

Protected Manufactured Goods

• According to the wording of the laws only items or services are being protected
• However the protection covers all work and service products, the question revolves around weather the good itself is a form of work from the owner
• Nur products with business individuality enjoy protection, others do not.
• Business individuality is a tangible product that clients rely on
• Consumers may assume the product belongs to a parent company
• The products need to have free technical solutions for them to b monopolized- Tupperware should be stackable

Imitation

• You have to differentiate between the forms of imitation -> a one on one copy, a similar action reproduction

Special Situations

- Fraudulent origin
- This is looked at on the scale on honesty of the clients