In its ruling of October 5, 2017, the BGH decided that real estate agents must publish certain information from the energy performance certificate in their offers (case reference: I ZR 232/16). The BGH thus confirms the opinion of the Würzburg Regional Court from September 10, 2015 (Ref.: HKO 1046/15).
Deutsche Umwelthilfe e.V. took action against newspaper advertisements from real estate agents, which it considered to be inadmissible. The reason: important information from the energy performance certificate was missing.
No information on energy efficiency class in real estate advertisements
A large number of estate agents advertised residential properties for rent or sale in daily newspapers. However, these advertisements did not contain any information on the type of energy certificate, the main energy source for heating, the year of construction of the residential building or the energy efficiency class. In the opinion of Deutsche Umwelthilfe, this was a violation of Section 16a of the Energy Saving Ordinance (EnEV).
Umwelthilfe is fundamentally correct in its view
The BGH has now rejected the real estate agents‘ appeal in two cases.
It is true that Umwelthilfe is not entitled to direct injunctive relief under Section 3a UWG in conjunction with Section 16a EnEV. § Section 16a EnEV. This is because this provision only obliges the seller or landlord to provide information on energy consumption in the corresponding advertisement in the commercial media prior to the sale and letting of a property. However, only if an energy certificate was available at the time of the advertisement. However, the real estate agent is not the addressee of this information obligation.
Mandatory labeling in real estate advertisements as consumer protection
In the opinion of the BGH, however, Umwelthilfe could successfully claim against the estate agents pursuant to Section 5a para. 2 UWG with success. By withholding essential information, the consumer was misled. The obligation for real estate agents to provide information on energy consumption arises from Art. 12 of the Energy Performance of Buildings Directive(2010/31/EU).
The essential information includes, for example, the type of energy certificate, the main energy source, the year of construction of the residential building, the energy efficiency class and the value of the final energy demand or final energy consumption. In this respect, the information obligations are in line with Section 16a EnEV.
Europe-wide goal of transparency and efficiency in energy consumption
The BGH ruling is intended to prevent the imitation effect of incorrect and/or missing information in advertisements. If other estate agents followed this approach and did not provide information from the energy performance certificate, the Europe-wide goal of transparency and efficiency could ultimately not 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.