In its ruling of June 21, 2017, the KG Berlin decided (Ref.: 5 U 185/16) that an online delivery service is also liable for legal violations committed by its partner restaurants on its internet platform. If the partner restaurants provide false, incomplete or incorrect information in the presentation of the menu, the online delivery service itself can be held liable under competition law.
The reason for the perpetrator liability is that the online delivery service is not just an online marketplace, but a co-provider of the service. According to the KG Berlin, the information on its website should be considered its own offer.
Competition association criticizes violations of the PAngV and LMIV
The lawsuit was brought by the Verein zur Bekämpfung unlauteren Wettbewerbs in der Nahrungsmittel- und Gastronomiebranche e.V. (VBuW). It considered the presentation of several menus of a Berlin-based online delivery service to be unlawful and subsequently sent the company a warning letter. In particular, the competition association criticized violations of the Price Indication Ordinance (PAngV) and the Food Information Regulation (LMIV).
The violations ranged from the omission of basic prices and the incorrect labeling of allergens and additives to the incorrect declaration of alcohol content.
Online delivery service attempts to evade obligations
The online delivery service already took the position in the warning that it was not itself responsible for the infringements on the menus of the partner restaurants. Therefore, there was already no legal basis for liability. However, the operators of the online delivery service also admitted that they create the content of the menus manually on their own responsibility. However, this does not automatically make them subject to the relevant statutory provisions.
At the same time, the online delivery service also claims that it is simply unreasonable to expect it to check all the menus of its partner restaurants – which are undoubtedly very many in Berlin – for accuracy.
KG Berlin: Online delivery service liable as perpetrator for competition law infringements
However, the KG Berlin did not agree with the online delivery service’s statements in its ruling. Both objectively and from the customer’s point of view, the online delivery service was very closely involved in the delivery and processing operations of the individual suppliers. The service provided by the online delivery service went well beyond the normal service of an online marketplace.
For this reason, the online delivery service is also to be regarded as the addressee of Section 2 para. 1 sentence 1 PAngV, as the offers of the individual suppliers also represent the online delivery service’s own offer. Accordingly, the online delivery service itself must also check all the information on the menu displayed and amend it if necessary.
The court also considered the delivery service to be the correct addressee with regard to the labeling obligation under the Food Information Regulation. After all, the food and dishes of the individual partner restaurants are marketed via the delivery portal. The delivery service plays a significant role in product placement and marketing, meaning that the online delivery service should be considered a food business, Section 3 para. 1 a LMIV.