After the BGH formulated the review obligation for Amazon retailers last year (judgment of 03.03.2016 – I ZR 110/15), the Higher Regional Court of Cologne has now specified these review obligations (decision of 15.03.2017 – 6 W 31/17).
According to the Higher Regional Court, a daily review of one’s own offers is sufficient to avoid liability.

BGH formulates audit obligation for Amazon retailers

The ruling of the Federal Court of Justice was decisive for the Higher Regional Court’s case law.
As early as 2016, this court determined that Amazon retailers could be considered perpetrators of competition law infringements.
This applies in particular to incorrect price information or the use of incorrect brand names in the sales offer.

According to the BGH, retailers are also liable if they have the offers published in their own name, but at the same time have no influence on the content of the offers and the changes were made by third parties.

This results in a comprehensive review obligation for retailers.
If third parties change the offer in such a way that it violates existing competition law, retailers are liable if they do not notice the change at an early stage.
The BGH did not specify a specific review interval.
The subsequent decisions of other courts also did not deal with the specific review interval.

Daily review: OLG specifies case law of the BGH

However, the Higher Regional Court of Cologne has now taken a stand on precisely this issue.
The duty to check applies daily from Mondays to Fridays.
There is no liability for infringements at the weekend if the retailer checks its offers daily during the week.
The OLG thus sets the bar very high for the duty to check.

Obligation to check “only” daily from Monday to Friday

However, like our colleagues at HKMW, we wonder why the obligation to carry out checks does not exist on the days with the highest turnover – the weekend.
Furthermore, the duty to inspect does not apply to the times with the highest turnover – the evening hours after work.

It is therefore questionable whether the decision is compatible with Directive 2005/29/EC of the European Parliament.
The aim of this directive is to encourage the member states to guarantee the highest level of consumer protection.

In order to answer the question of the compatibility with the European regulations, the Higher Regional Court of Cologne could have referred the case to the ECJ as the last instance – as it did not allow the appeal on points of law.

We recommend additional testing at the weekend

Nevertheless, the ruling of the Higher Regional Court of Cologne is effective and must be implemented by Amazon retailers.
The review interval is very tight with a daily review (from Monday to Friday).
Nevertheless, we recommend checking the offers regularly at the weekend too.
This way, retailers can play it safe and be sure that they are not violating European regulations.