In its ruling of 15.12.2016 (Ref.: 8 O 36/16), the Regional Court of Arnsberg decided that the information obligations arising from the German CarEnergy Consumption Labeling Ordinance(PKW-EnVKV) also apply to Wordpress test pages. Even if the test page is not yet accessible via Google, the failure to display the information constitutes a breach of competition law.
Agency creates WordPress test site
A car dealer had commissioned an agency to design a sales page on the Internet to improve the sale of its vehicles. As part of this agreement, the agency created a website using WordPress and designed it with various offers from the car dealer. Until the trial, the WordPress test page was neither integrated into the car dealer’s homepage nor could it be found via Google. The test page could only be accessed by manually entering the URL directly in the browser.
Lack of information constitutes a breach of competition law
The lawsuit was brought by an environmental and consumer protection association that considered the car dealer’s advertising to be unfair. In the lawsuit, the association sought an injunction against the advertising without sufficient information in accordance with the PKW-EnVKV and damages. The Arnsberg Regional Court ruled in favor of the consumer protection association. The car dealer was in breach of competition law by not complying with the information obligation under the Energy Consumption Labeling Ordinance.
Compliance with the information obligations from the PKW-EnVKV
According to the PKW-EnVKV, vehicle manufacturers and dealers must comply with special information obligations when selling vehicles, § 1 PKW-EnVKV. If they exhibit passenger cars, offer them for sale or lease or advertise the vehicles, the following information must be provided:
- Information on fuel consumption,
- Information onCO2 emissions and
- Information on power consumption, if applicable
If this information is not provided, this leads to an infringement of competition law within the meaning of Sections 3 para. 1, 3a UWG in conjunction with. § Section 5 OKW-EnVKV.
Availability is crucial
According to the agency, the WordPress test page had only been created by the agency as a draft page and had not been made available to the general public. Nevertheless, in the opinion of the Regional Court, it was not decisive how exactly the page could be found, but that it was possible to access it at all by manually entering the URL.
The retrievability of the WordPress test page means that the information obligations of the PKW-EnVKV must also be stated. The fact that the infringement of competition law was actually committed by the agency is also irrelevant, as the car dealer is also liable for the actions of the commissioned company. Fault is not relevant.
Extreme caution is therefore still required when creating websites. The general statutory information obligations must also be observed for WordPress test pages and drafts – even if the test page is not accessible to the general public. The decisive factor is the actual retrievability by manually entering the URL in the browser.