Tenor
The plaintiff’s appeal against the judgment of the 1st Chamber for Commercial Matters of the Regional Court of Darmstadt delivered on June 16, 2015 is dismissed with costs.
This judgment and the contested judgment are provisionally enforceable without the provision of security. The plaintiff may avert enforcement by providing security in the amount of € 40,000 unless the defendant provides security in the same amount prior to enforcement.
Reasons
I.
The parties are in dispute about mandatory information under the German Car Energy Consumption Labeling Ordinance in the context of an advertising video.
The plaintiff is a general importer of brand1 vehicles. On February 17, 2014, it advertised two new vehicles (“Marke1 Fabrikat1” and “Marke1 Fabrikat2”) with a video clip it published on YouTube. The video itself does not contain any information on the fuel consumption and CO2 emissions of the advertised vehicles. These only appeared when the “Show more” button was clicked. With regard to the content of the advertising video, reference is made to the screenshot, Annex B3 and the video, Annex B4.
The defendant sent the plaintiff a warning letter on February 28, 2014.
With regard to the further details of the facts of the case and the applications made at first instance, reference is made to the factual findings in the contested judgment (Section 540 (1) sentence 1 ZPO).
The parties agreed in the first instance that the action for a negative declaratory judgment originally brought by the plaintiff was settled.
In response to the counterclaim, the Regional Court ordered the plaintiff to refrain from advertising in the course of trade for the purposes of competition on the internet on the portal www.YouTube.com for new passenger cars that have not yet been sold for any purpose other than resale or delivery (within the meaning of Section 2 no. 1 of the Ordinance on Information on Fuel Consumption and CO2 Emissions of New Passenger Cars), of the make1 make1 model and/or the make1 make2 model, in each case with engine specifications, without at the same time indicating and ensuring their official fuel consumption values in the combined test cycle and their official specific CO2 emission values in the combined test cycle, that the recipient of the advertisement automatically becomes aware of this information at the moment when information on the engine performance of the advertised passenger cars is provided on the website for the first time, if this occurs as in the video clip ” Marke1 TV-Spot: ….” on the internet platform www.YouTube.com on 17.2.2014, reproduced as follows:
(The following image was not shown for technical reasons – the ed.)
In addition, the Regional Court ordered the plaintiff to reimburse the warning costs.
The plaintiff’s appeal is directed against this assessment. On appeal, the parties repeat and deepen their arguments. The plaintiff disputes its entitlement to bring the counterclaim. The defendant does not meet the registration requirements for a qualified entity pursuant to Section 4 UKlaG. The action is also precluded by the objection of abuse of rights. The defendant is creating a source of income for himself with mass warnings. The requirements for injunctive relief were not met. The YouTube platform is an audiovisual media service within the meaning of Art. 1 para. 1(a) of Directive 2010/13/EU. The plaintiff was therefore exempt from providing information on the official fuel consumption and the official specific CO2 emissions in the context of the video at issue. Unlike the case on which the BGH’s “YouTube Advertising Channel II” decision is based, this case does not involve a video that is part of an advertising channel.
With the consent of the parties, the Senate suspended the appeal proceedings by order dated March 29, 2016 until the decision of the BGH in the appeal proceedings I ZR 117/15 (BGH WRP 2018, 1476 – YouTube-Werbekanal II).
The applicant claims that the Court should,
set aside the judgment of the Darmstadt Regional Court of 16.6.2015, case no. 12 O 151/14, and dismiss the counterclaim.
The defendant claims,
dismiss the appeal.
With regard to the further submissions of the parties, reference is made to the exchanged written submissions and their annexes.
II.
The admissible appeal is not successful on the merits.
1. the action is admissible.
a) The application for injunctive relief is sufficiently specific. It does not merely repeat the wording of the law. Although the application combines features of the elements of § 2 no. 1 Pkw-EnVKV (“motor vehicles that have not yet been sold for a purpose other than resale or delivery”), Annex 4 para. II No. 2 to § 5 (“Values of the official fuel consumption … and the official specific CO2 emissions in the combined test cycle”) and No. 3 (“to ensure that the recipient … automatically becomes aware of the information at the moment when … information on engine performance … are provided”). However, it does not stop there. The application is limited to advertising on the internet on the “YouTube” platform. Furthermore, it relates to the specific form of infringement (Annex B3). Moreover, even an application that repeats the law would be unobjectionable if the applicant makes it sufficiently clear that he is not seeking a prohibition within the scope of the wording of the law, but rather that his request for injunctive relief is based on the specific act of infringement (BGH GRUR 2012, 842 para. 12 – Neue Personenkraftwagen). This is the case in dispute.
b) The defendant is authorized to conduct the proceedings.
aa) It is indisputably a “qualified entity” within the meaning of Section 8 para. 3 No. 3 UWG. The entry in the list of qualified entities has a constitutive effect with regard to the standing to sue to be examined in the context of admissibility (see BGH, judgment of February 4, 2010 – I ZR 66/09, para. 11 – Gallardo Spyder, juris).
bb) Contrary to the plaintiff’s opinion, there is also no reason to suspend the proceedings pursuant to Sec. 4 para. 4 UKlaG to (re)clarify the question of whether the defendant fulfills the relevant registration requirements. The existence of reasonable doubt within the meaning of Section 4 para. 4 UKlaG, because otherwise the effective enforcement of the claims under §§ 1, 2 UKlaG would be jeopardized (see BGH, loc. cit., with further references). Such reasonable doubts have not been sufficiently demonstrated by the plaintiff, who is burdened with the burden of proof, nor are they otherwise apparent. The submitted figures from the balance sheets for the years 2007 to 2017, which it uses to justify the allegedly profit-oriented business model, were already available to the Federal Office of Justice during the annual review of registrability and did not lead to any objections there. The purpose of the review by the Federal Office is precisely to determine whether the requirements for registration are (still) met and therefore includes a review of whether the institution offers a guarantee for the proper fulfillment of its tasks (cf. OLG Celle, decision. of 8.5.2018 – 13 U 12/18, para. 13 – juris). The continuous increase in income from the warning activity with a simultaneous lower increase in expenditure is unlikely to have escaped the attention of the Federal Office. The fact that there is a petition and an application by a CDU association with the aim of revoking the defendant’s non-profit status is not in itself a reason for doubt within the meaning of Section 4 para. 4 UKlaG. The reason for these measures lies in the “diesel driving bans” obtained by the defendant, which are politically controversial.
c) The admissibility of the action is also not precluded by the plaintiff’s objection of abuse of rights. Neither the defendant’s warning nor the further pursuit of the claims with the action are admissible pursuant to Section 2b UKlaG in conjunction with Section 8 para. § 8 Abs. 4 UWG.
aa) An abuse within the meaning of Section 8 para. 4 sentence 1 UWG is to be assumed if the dominant motive of the creditor in asserting the claim for injunctive relief is irrelevant interests and objectives that are not worthy of protection in themselves. However, these do not have to be the creditor’s sole motive. It is sufficient for the extraneous objectives to predominate. The assumption of such an abuse of rights requires a careful examination and consideration of the relevant individual circumstances. An indication of abusive prosecution may arise from the fact that the warning activity bears no reasonable economic relationship to the commercial activity of the party issuing the warning (BGH, judgment of 26.4.2018 – I ZR 248/16 – Abmahnaktion II).
bb) The defendant cannot be accused of carrying out extensive warning activities and having the costs of the warnings reimbursed. The defendant is registered in the list of qualified institutions pursuant to § 4 of the Injunctions Act. The warning of infringements of consumer protection standards is one of its statutory tasks in the interest of consumer protection. There are no indications that it is primarily concerned with generating claims for reimbursement of costs and contractual penalties in the case in dispute. The present warning is directed against the German general agency of a globally active automotive group due to missing information in two advertising videos. This is not a trivial infringement that is easy to assess. Rather, difficult questions of European law had to be clarified. The defendant is claiming flat-rate warning costs of € 245.00 for this. In this situation, it cannot be assumed that the defendant acted primarily in the interest of reimbursing costs.
cc) Insofar as the plaintiff accuses the defendant, with reference to the considerations in the legal dispute before the Higher Regional Court of Stuttgart (case no. 2 U 165/16, see Annex K19), of an abuse of rights because it would use the profits generated from its market pursuit for extraneous purposes and thus carry out an abusive cross-subsidization from purposes covered by the UKlaG to purposes extraneous to the UKIaG, this does not apply either. First of all, it should be noted that the Higher Regional Court of Stuttgart also countered this argument with detailed reasons. In any case, it is not apparent that such (assumed) intentions of the defendant could play a decisive role in the case to be decided here. It cannot be inferred from the plaintiff’s general allegations that extraneous considerations are at all decisive for the specific legal prosecution of a claim for injunctive relief asserted by the plaintiff in accordance with its statutory purpose. The mere fact that the defendant achieves – steadily increasing – surpluses from its market pursuit activities over a longer period of time is not sufficient to impute to it the pursuit of extraneous objectives as the dominant motive for its legal action. As the Higher Regional Court of Stuttgart also assumed, there is no evidence of any planned action aimed at making a profit or cross-subsidization. In particular, it is not apparent that the defendant is concentrating on trivial infringements that are easy to win or is aiming for excessive reimbursement claims.
dd) Contrary to the plaintiff’s suggestion in its subsequent written submission, the legal dispute was also not to be suspended until the Federal Court of Justice’s decision in the appeal proceedings I ZR 149/18. The requirements for a stay are not met. Whether conduct constitutes an abuse of rights requires – as already described – a careful examination and consideration of the relevant individual circumstances (see BGH GRUR. 2019, 199, para. 21 – Abmahnaktion II). A possible abuse of rights in the Stuttgart proceedings therefore does not indicate an abuse of rights for the present proceedings.
2. the defendant is entitled to injunctive relief against the plaintiff under §§ 8I, 3, 3a, (4 no. 11 old version), 5a II no. 1 in conjunction with § 5 para. 1 and 2 Pkw-EnVKV. The plaintiff has breached its obligation to provide information on the official fuel consumption and the official specific CO2 emissions of the advertised vehicles in the advertising in question on YouTube.
a) The obligations imposed on manufacturers and distributors in § 1 para. 1, § 5 para. 1 Pkw-EnVKV imposes on manufacturers and dealers to ensure that the advertisements they use contain information on the official fuel consumption and the official specific CO2 emissions of the relevant models of new passenger cars in accordance with Section I of Annex 4 is a market conduct regulation within the meaning of Section 4 No. 11 UWG aF and Section 3a UWGnF (BGH WRP 2018, 1476 marginal no. 21 – YouTube advertising channel II). At the same time, this is material information within the meaning of Section 5a II UWG. The information obligation set out in Section 5 Pkw-EnVKV has its basis in Directive 1999/94/EC of 13.12.1999 on the provision of consumer information on fuel economy and CO2 emissions in respect of the marketing of new passenger cars. The German legislator has permissibly made use of the possibility to regulate such obligations outside of “advertising literature” within the meaning of Art. 1 No. 9 of Directive 1999/94/EC for electronic services. A regulation that presents itself as the implementation of an option provided for in Union law therefore also finds its basis in Union law (see Senate, decision of 6.12.2018 – 6 U 196/17, para. 10 – juris).
b) The Regional Court rightly assumed, without objection by the appeal, that two “models of new passenger cars” within the meaning of Section 2 No. 15 Pkw-EnVKV are advertised in the challenged advertising video. The advertising relates to the models “Marke1 Fabrikat1” and “Marke1 Fabrikat2”.
c) The plaintiff’s YouTube video is “advertising material” within the meaning of Section 5 para. 2 sentence 1 half-sentence 1 Pkw-EnVKV. According to Section 2 No. 11 Pkw-EnVKV, advertising material is any form of information that is used for marketing and advertising the sale and leasing of new passenger cars to the public; this also includes texts and images on websites. Obviously, texts and images on websites are only mentioned as examples, so that the term advertising material also includes videos available on the internet (BGH loc. cit. para. 25).
d) The defendant is not exempt from the obligation to provide information on the official fuel consumption and the official specific CO2 emissions pursuant to § 5 para. 2 sentence 1 half-sentence 2 Pkw-EnVKV. Accordingly, radio services and audiovisual media services within the meaning of Art. 1 para. 1 letter a of Directive 2010/13/EU are exempt from the obligation to indicate the official fuel consumption and the official specific CO2 emissions of the relevant models of new passenger cars.
aa) According to the BGH’s leading decision “YouTube Advertising Channel II”, neither the advertising video at issue there nor the YouTube channel operated by the defendant there were to be regarded as an audiovisual media service within the meaning of Art. 1 para. 1(a)(i) of Directive 2010/13/EU. This requires that a media service provider bears editorial responsibility for the channel and that its main purpose is to provide information, entertainment or educational programs to the general public. The main purpose of the YouTube channel to be assessed by the BGH was not the provision of broadcasts intended to inform, entertain or educate the general public via electronic communications networks within the meaning of the Directive, but advertising for purely commercial purposes. Insofar as an advertising video can also inform, entertain or educate viewers, this is only done with the aim and as a means of advertising (BGH loc. cit. para. 35).
bb) In the opinion of the Federal Court of Justice, the posting of the promotional video there could also not be seen as the operation of an audiovisual media service within the meaning of Art. 1 para. 1(a)(ii) of Directive 2010/13/EU. This requires images with or without sound which are attached to or contained in a broadcast in return for payment or similar consideration or as self-promotion. Audiovisual commercial communication includes television advertising, sponsorship, teleshopping and product placement (BGH loc. cit. para. 38).
cc) The aforementioned requirements are also not met in the case in dispute. The plaintiff argues without success that the BGH decision is not transferable to the present case because it is not about a YouTube channel in which the advertising video is placed. The video in question is part of the overall offering on YouTube, whereby YouTube is to be regarded as an audiovisual media service.
(1) This argument is misguided because the video to be judged by the BGH was also posted on the YouTube platform and was therefore part of the overall service. If the YouTube platform itself were an audiovisual media service, all videos available there would be part of the media service, regardless of whether they are also assigned to a specific sub-category with an advertising purpose. It may be true that the YouTube platform does not primarily serve advertising purposes. It is also true that the BGH and the ECJ – which it consulted in advance – primarily focused on the YouTube channel and its advertising purpose. The main purpose of an advertising video channel such as the one at issue could not be seen in the provision of broadcasts for the information, entertainment or education of the general public (ECJ GRUR 2018, 321 para. 21, 24 – Peugeot Deutschland GmbH/DUH e. V.). Nevertheless, the video was not only part of the advertising channel, but also part of the generally accessible offer of the YouTube platform. Neither the ECJ nor the BGH assumed that this platform was an audiovisual media service.
(2) Furthermore, there is also no requirement for a provider to bear editorial responsibility for the media service. The operators of the YouTube platform do not exercise any editorial responsibility for the videos posted there. They merely make storage space available to third parties for the posting of videos of any content. Conceptually, there is no media service. According to Article 1(g) of the Directive, an on-demand audiovisual media service is a service which provides reception at the time chosen by the user and at the user’s individual request from a program catalog determined by the media service provider. There is no program catalog defined by the platform operator.
dd) It is also irrelevant that the plaintiff, according to its submission, had the identical video broadcast on television. In this respect, the video may be integrated into a program for which a media service provider bears editorial responsibility and whose main purpose is to provide programs for the information, entertainment or education of the general public. Insofar as the video appears on the YouTube platform, this is not the case.
ee) The plaintiff’s video is certainly not attached to a “program” for a fee, comparable to a television advertisement. Audiovisual commercial communication includes, inter alia, television advertising, sponsoring, teleshopping and product placement. It is not apparent that the plaintiff provides a consideration in this sense for the addition to the YouTube “broadcast”. It merely uses YouTube as a platform on which anyone can post videos free of charge. The videos are not combined into an overall program.
e) The plaintiff did not comply with its duty to provide information in the videos at issue. According to the findings of the Regional Court, information on the motorization of the vehicles is already provided on the first image of the video. However, there is no information on fuel consumption and CO2 emissions. They only appear when the “show more” button is clicked.
f) There are no doubts about the relevance of the infringement within the meaning of Section 5a II 1 UWG against the background of the BGH case law and no such doubts are asserted.
g) Contrary to the plaintiff’s opinion, a referral to the ECJ is not necessary. The relevant questions here have been clarified by the BGH decision “YouTube-Werbekanal II” and the previous preliminary ruling of the ECJ. In the opinion of the Senate, the additional legal questions raised by the plaintiff are subject to the acte clair doctrine, which is why there is no need for a referral.
3. the defendant can also claim the flat-rate warning fee (Section 12 I sentence 2 UWG). The warning was justified.
4 The decision on costs is based on Section 97 ZPO, the decision on provisional enforceability on Sections 708 No. 10, 711 ZPO.
5 The requirements for the admission of an appeal (Section 543 (2) ZPO) are not met.