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Mandatory labeling in real estate advertisements

If information from the energy performance certificate is withheld in an advertisement, this may constitute unfair competition on the part of the estate agent.

Mandatory labeling of real estate advertisements is in the interest of consumers, as they should receive comprehensive information on environmentally relevant facts about the properties advertised.

If the estate agent provides information from the energy performance certificate, this may constitute a breach of the Energy Saving Ordinance in accordance with Section 16a EnEV, according to a ruling by the Würzburg Regional Court on September 10, 2015 (Ref.: 1 HKO 1046/15).

Mandatory labeling in real estate advertisements as consumer protection

An estate agent’s advertising in a real estate newspaper constitutes an act of competition. He wants to convince potential buyers of the property and conclude a contract.

The Würzburg Regional Court considers the provisions of the EnEV to be rules of market conduct in the interests of market participants, which an estate agent must also comply with. An estate agent advertisement in the newspaper must therefore (also) contain the essential information of the EnEV. If the information is missing, this constitutes an unfair act pursuant to Section 4 No. 11 UWG (old version) or Section 3a UWG (new version).

Legal basis for the Energy Saving Ordinance

The basis for the EnEV, which came into force on May 1, 2014, is the Energy Saving Act (EnEG). This serves to implement Directive 2010/31/EU. The EnEV thus implements European legal requirements which are to be regarded as material within the meaning of Section 5 a para. 2 UWG 2008.

Labeling obligation in real estate advertisements from § 16a EnEV

A labeling obligation under Section 16a EnEV primarily pursues two objectives. On the one hand, it exists in the interests of other market participants and, on the other, to protect the environment. Consumers in particular should obtain environmentally relevant information about the advertised property. If such information is withheld, purchase decisions could be made that would not have been made if the information had been known. The labeling obligation increases consumer awareness of energy efficiency.

Mandatory labeling of real estate advertisements: Misleading consumers

With regard to the consumer, this results in a not inconsiderable impairment. Information that should not be withheld according to the EnEV does not reach the consumer.

The court also sees this as misleading consumers by omitting information in the context of commercial communication, Section 5a para. 4 UWG. Consumers are generally entitled to this information on the basis of EU law. A lack of information could lead the consumer to make a wrong decision.

Imitation effect if information from the energy performance certificate is missing

Ultimately, the imitation effect should not be underestimated. If other brokers join in and do not provide information from the energy performance certificate, the Europe-wide goal of transparency and efficiency cannot ultimately be achieved.

The real estate industry is therefore also subject to a labeling requirement. Incidentally, this is not only the case for print advertisements. § Section 16a EnEV refers to “commercial media” in general and therefore also covers online media. Our lawyers can advise you in detail on this.

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