a) Statements suitable to deceive within the meaning of Section 5 para. 1 sentence 2 case 2 UWG are not only statements of fact, but also statements of opinion under certain conditions.
b) The question of whether statements about the legal situation are covered by Section 5 para. 1 UWG, the decisive factor is how the consumer perceives the trader’s statement, taking into account all the circumstances of the individual case, in particular the manner in which the statement is made.
c) If it is recognizable to the public concerned that it is a legal opinion expressed in the context of legal prosecution or legal defense, this statement lacks the aptitude to deceive required to fulfill the element of misleading.
d) In contrast, Section 5 para. 1 UWG covers statements in which the trader asserts a clear legal situation to consumers which does not actually exist, provided that the customer addressed does not understand the statement as an expression of a legal opinion but as a statement. Similarly, objectively incorrect legal information provided by a trader in response to an explicit request from the consumer is likely to mislead and influence the consumer.
e) The provisions of Sections 3, 5 para. 1 sentence 1 and 2 no. 7 UWG are consumer protection laws within the meaning of Section 2 para. 1 sentence 1 UKlaG.
Tenor
The appeal against the judgment of the 9th Civil Senate of the Higher Regional Court of Naumburg of April 27, 2017 is dismissed at the plaintiff’s expense.
By right.
Facts of the case
The plaintiff is the consumer advice center S. . The defendant, Kreissparkasse A. -B. was created with effect from January 1, 2008 by way of the absorption of Kreissparkasse A. -Z. and K. by Kreissparkasse B. with effect from January 1, 2008.
The legal predecessors of the defendant had concluded numerous premium savings contracts with customers. It was agreed therein that the saver would pay a certain monthly amount into the savings account and that a reduction, but not an increase, of the savings contributions was possible. According to the further content of the contracts, the savings balance was to bear variable interest at the applicable interest rate for savings balances. In addition, the defendant paid a so-called “S-premium” on the savings contributions made during a calendar year at the end of each year in accordance with the premium scale specified in the contract. This premium scale covers 15 or 25 years, depending on the structure of the contract.
In 2015, the defendant terminated numerous of these premium savings contracts, using the following wording:
The existing contracts are deposits with a three-month notice period. A contract term has not been agreed.
The plaintiff considers these termination letters to be misleading because the defendant has no right of termination until the expiry of the agreed premium scale. The incorrect information causes the consumer to waive the enforcement of rights to which he is entitled, in particular the payment of premiums.
By analogy, the applicant requested that the defendant be prohibited from informing consumers who have concluded such premium savings contracts with it before the end of the last year of the premium scale that the contract is a ‘deposit with a three-month notice period’ and/or that the contract will be terminated subject to a three-month notice period. Furthermore, the plaintiff has requested that the defendant be ordered to provide it with information about the consumers with whom it has concluded such premium savings contracts, to send these consumers an individualized letter of amendment with a more detailed content and to provide evidence of its dispatch. In the alternative, it has requested information on the number of premium savings contracts as well as the dispatch of letters of amendment and proof of dispatch. The plaintiff is also seeking reimbursement of the costs of the warning letter in the amount of € 200 plus interest.
The Regional Court dismissed the action. The plaintiff’s appeal was unsuccessful. With the appeal allowed by the Senate, which the defendant seeks to have dismissed, the plaintiff continues to pursue its claims.
Reasons
I. The Court of Appeal considered the action to be unfounded because the defendant had expressed a legal opinion in the letters complained of and had not made any statements within the meaning of Section 5 para. 1 sentence 2 no. 7 UWG. It stated that:
Misleading statements within the meaning of Section 5 UWG could only be claims that could prove to be clearly true or false upon examination, i.e. that could not actually be disputed, such as the invocation of a clearly invalid GTC clause. A company cannot be denied the right to represent a certain legal opinion in the context of legal enforcement or defense. The wording of the defendant objected to by the plaintiff, namely that the contract could be terminated subject to a notice period of three months, constituted a legal opinion that was not open to proof. An averagely informed, attentive and reasonable bank customer could only infer from this wording that the defendant considered the contract to be terminable. It is not necessary to include an additional restriction such as “according to our legal opinion” in the wording.
II. The plaintiff’s appeal is unsuccessful. The Court of Appeal rightly assumed that the asserted claims for injunctive relief and removal (Section 8 para. 3 no. 3, para. 1 UWG in conjunction with Section 3 para. 1, Section 5 para. 1 sentence 1 and 2 no. 7 UWG; Section 2 UKlaG) do not exist. This means that the claim for information in preparation for removal, the claim for (consequential) removal and the claim for compensation for warning costs are also unfounded.
1. the application for injunctive relief based on the risk of repetition is only justified if the defendant’s conduct complained of was unlawful both at the time it was carried out and at the time of the decision in the appeal instance (established case law; see only BGH, judgment of September 21, 2017 – I ZR 53/16, GRUR 2018, 320 marginal no. 16 = WRP 2018, 328 – Festzins Plus).
With the request for the sending of letters of correction and the request for information in preparation for this letter, the plaintiff is asserting a claim for the removal of a continuing disturbance. These claims also require that an impairment that has already occurred in the past still persists (see BGH, judgment of December 14, 2017 – I ZR 184/15, GRUR 2018, 423 para. 25 = WRP 2018, 436 – Klauselersetzung). As in the case of injunctive relief, the justification of these applications requires that the contested impairment was unlawful at the time it occurred and that its consequences persist at the time of the decision in the appeal instance.
In contrast, the law applicable at the time of the warning is decisive for the claim for reimbursement of warning costs (BGH, judgment of July 24, 2014 – I ZR 119/13, GRUR 2015, 393 marginal no. 13 = WRP 2015, 450 – Der neue SLK; judgment of January 28, 2016 – I ZR 40/14, GRUR 2016, 803 marginal no. 14 = WRP 2016, 1135 – Armbanduhr).
After the letters of termination objected to by the plaintiff were sent in October and November 2015, the law applicable in the dispute was amended with effect from December 10, 2015 by the Second Act Amending the Act against Unfair Competition (BGBl. I 2158). As a result of the insertion of Art. 6 para. 1 of the Unfair Commercial Practices Directive 2005/29/EC in Section 5 para. 1 sentence 1 UWG has not changed the legal situation (see BGH, GRUR 2018, 320 marginal no. 16 – Festzins Plus).
2. the plaintiff is authorized to bring an action and entitled to assert the claims in dispute.
a) As a qualified entity within the meaning of Section 8 para. 3 No. 3 UWG, it is entitled to claims for injunctive relief and removal under Section 8 para. 1 UWG against anyone who carries out an unfair and therefore unlawful commercial act pursuant to Sections 3, 5 para. 1 UWG and therefore unlawful commercial activity. The same applies to the claim for information from § 242 BGB, which prepares a claim for removal. Furthermore, the plaintiff may, pursuant to § 12 para. 1 sentence 2 UWG, the plaintiff can demand reimbursement of the expenses required for the warning, insofar as the warning was justified.
b) As a qualified entity within the meaning of Section 3 para. 1 no. 1 UKlaG, the plaintiff is also entitled to the claims for injunctive relief and removal specified in § 2 para. 1 sentence 1 UKlaG against anyone who violates regulations that serve to protect consumers (consumer protection laws) in a manner other than through the use or recommendation of general terms and conditions. The same applies to the claim for information under Section 242 BGB, which prepares a claim for removal. Furthermore, pursuant to Section 5 UKlaG in conjunction with Section 12 para. 1 UWG, the plaintiff can demand reimbursement of the expenses necessary for its warning, insofar as this warning was justified.
3. however, the content of the letter of termination objected to by the plaintiff does not violate § 5 para. 1 sentence 1 and 2 no. 7 UWG.
a) Pursuant to Section 5 para. 1 sentence 1 UWG, anyone who carries out a misleading commercial act which is likely to induce the consumer to make a commercial decision which he would not otherwise have made is acting unfairly. Pursuant to Section 5 para. 1 sentence 2 UWG, a commercial act is misleading if it contains untrue statements (case 1) or other misleading statements about the circumstances listed below (case 2). According to § 5 para. 1 sentence 2 case 2 no. 7 UWG, a commercial act is misleading if it contains other misleading information about the consumer’s rights.
b) The defendant’s termination letters are commercial acts within the meaning of Section 5 para. 1 UWG. Pursuant to § 2 para. 1 No. 1 UWG, a commercial act is any conduct of a person for the benefit of his own company – even after the conclusion of a transaction – which is objectively connected with the performance of a contract for services, whereby rights and obligations are also deemed to be services.
aa) The characteristic of objective connection is to be understood functionally and requires that the act, when viewed objectively, is aimed at influencing the commercial decision of consumers or other market participants. A commercial act may also consist of conduct that has an effect on the commercial decision of consumers in the context of an already existing contractual relationship (see BGH, judgment of 10 January 2013 – I ZR 190/11, GRUR 2013, 945 para. 17 f., 26 = WRP 2013, 1183 – Standardisierte Mandatsbearbeitung).
bb) Accordingly, the required objective connection exists. The termination of the premium savings contracts concluded with consumers by the defendant in its own business interests is objectively connected with the further performance of these contracts. The question of whether the consumer accepts or opposes a termination is a commercial decision.
c) Contrary to the opinion of the Court of Appeal, the contested statements in the termination letters are statements within the meaning of Section 5 para. 1 sentence 2 UWG.
aa) The provision of Section 5 para. 1 sentence 2 UWG – like the underlying provision of Art. 6 para. 1 of Directive 2005/29/EC – covers two cases of misleading commercial acts. The first case concerns objectively inaccurate information, which is a completely open-ended offense; the second case is based on the ability to deceive the consumer and contains a catalog of circumstances about which information suitable for deception can be made, with the consequence that a misleading act exists (BGH, judgment of 19. April 2018 – I ZR 244/16, GRUR 2018, 950 marginal no. 41 = WRP 2018, 1069 – Namensangabe; see Bornkamm/Feddersen in Köhler/Bornkamm/Feddersen, UWG, 37th ed, § Section 5 para. 1.54 et seq.).
The case in dispute concerns a commercial act that can be assigned to one of the reference points of misleading information listed in Section 5 para. 1 sentence 2 case 2 UWG, namely the rights of the consumer mentioned in § 5 para. 1 sentence 2 case 2 no. 7 UWG. The term consumer rights has a broad meaning. It includes all rights of the consumer, including the prerequisites for their exercise as well as the rights to formulate and terminate the contract (cf. Bornkamm/Feddersen in Köhler/Bornkamm/Feddersen loc. cit. § 5 UWG para. 8.4). This includes not only information about the existence of certain rights, but also about their content, scope and duration as well as any requirements for asserting them (Weidert in Harte/Henning, UWG, 4th edition, Section 5 (1) sentence 2 no. 7 para. 15). The statements in the termination letters regarding a three-month notice period as well as a termination of the savings contracts by the defendant based on this notice period therefore relate to the consumer’s right to the continuation and fulfillment of the respective premium savings contract.
bb) The appeal correctly asserts that statements suitable to deceive within the meaning of Section 5 para. 1 sentence 2 case 2 UWG can include not only statements of fact but also, under certain conditions, statements of opinion. This follows from the necessary interpretation of Section 5 para. 1 sentence 2 UWG.
(1) Section 5 para. 1 sentence 2 UWG serves to implement Art. 6 para. 1 of Directive 2005/29/EC. Accordingly, a commercial practice shall be regarded as misleading if it contains false information and is therefore untrue or in any way, including all the circumstances of its presentation, even if the information is factually correct, deceives or is likely to deceive the average consumer in relation to one or more of the matters listed below. It is also necessary in all cases that the average consumer is actually or probably induced to take a transactional decision that he would not have taken otherwise.
Art. 6 para. 1 of Directive 2005/29/EC therefore covers misleading commercial practices in general, but also, in the cases of letters a to g, all commercial practices which are in any way likely to deceive the average consumer. In accordance with the national provision in Section 5 para. 1 sentence 1 UWG – the actual or probable inducement to take a commercial decision that would otherwise not have been taken. The insertion “even with factually correct information” in Art. 6 para. 1 of Directive 2005/29/EC clarifies that in the second case, misleading statements can even be made with true information (see Peifer/Obergfell in Fezer/Büscher/Obergfell, UWG, 3rd edition, Section 5 para. 195a; Stillner, WRP 2015, 438, 441; Becker, WRP 2015, 139, 140). Accordingly, the second case can in principle also cover statements which – like expressions of opinion – may not be true or untrue, but are nevertheless likely to deceive the average consumer.
(2) It must also be taken into account that the term “claim” in Art. 6 para. 1 of Directive 2005/29/EC means any “information”, as can be seen from the English, French, Italian, Spanish and Dutch versions of the Directive. This means that all deceptive or misleading commercial acts with information content are covered by the prohibition of misleading statements.
(3) This broad understanding is also supported by the protective purpose of the prohibition of misleading statements. The regulation is intended to cover any action by a trader that is likely to mislead the consumer about his rights in a way that is relevant to his business decisions. In principle, this can also include statements about the legal situation.
d) However, statements about the legal situation are only covered by Section 5 para. 1 UWG. The decisive factor here is how the consumer perceives the entrepreneur’s statement, taking into account all circumstances of the individual case, in particular the manner of the statement (see Peifer/Obergfell in Fezer/Büscher/Obergfell loc. cit. Section 5 para. 425a).
aa) If it is recognizable to the relevant public that it is a legal opinion expressed in the context of legal prosecution or legal defense, this statement lacks the suitability to deceive required to fulfill the elements of misleading statements. This follows from the consideration that the entrepreneur must remain free to hold a certain legal opinion in the course of legal prosecution or legal defense. If a company represents a certain legal opinion in the context of legal enforcement or defense, it is an expression of opinion, which is therefore in principle not anti-competitive even if it proves to be incorrect (see BGH, judgment of May 3, 2007 – I ZR 19/05, GRUR 2007, 978 para. 30 = WRP 2007, 1334 – Legal advice by liability insurers; see Bornkamm/Feddersen in Köhler/Bornkamm/Feddersen loc. cit. § 5 para. 1.18). Whether this legal opinion is correct cannot be examined and decided in the competition process, but must be examined and decided in the legal relationship to which this legal opinion relates (KG, judgment of March 27, 2013 – 5 U 112/11, juris para. 97).
bb) In contrast, § 5 para. 1 UWG covers statements in which the entrepreneur asserts a clear legal situation to consumers that does not actually exist, provided that the customer addressed does not understand the statement as an expression of a legal opinion but as a statement (KG, judgment of 27 March 2013 – 5 U 112/11, juris para. 101; Peifer/Obergfell in Fezer/Büscher/Obergfell loc. cit. March 2013 – 5 U 112/11, juris para. 101; Peifer/Obergfell in Fezer/Büscher/Obergfell loc. cit. § 5 para. 425a; Köhler, WRP 2009, 898, 907; see also BGH, judgment of May 4, 2017 – I ZR 113/16, GRUR 2017, 1144 para. 16 and 19 = WRP 2018, 69 – Reisewerte). Similarly, objectively incorrect legal information provided by a trader in response to an express request from the consumer is likely to mislead and influence the consumer because it prevents him from making a decision in full knowledge of the facts (see ECJ, judgment of April 16, 2015 – C-388/13, GRUR 2015, 600 para. 40 = WRP 2015, 698 – UPC). Even in this situation, the targeted customer does not understand the statement as an expression of a legal opinion, but as a statement.
e) According to these principles, the objectionable statements of the defendant in the termination letters are not covered by Section 5 para. 1 sentence 2 case 2 no. 7 UWG.
The Court of Appeal assumed that the defendant’s wording objected to by the plaintiff, namely that a term had not been agreed and that the contract could be terminated subject to a notice period of three months, constituted a legal opinion. It is not claimed that this view corresponds to supreme court case law or is unanimous opinion. An averagely informed, attentive and reasonable bank customer could only infer from the wording that the defendant considered the contract to be terminable. It was not necessary for the wording to include an additional restriction such as “according to our legal opinion”. These findings of fact do not reveal any error of law.
Accordingly, the addressees of the termination letters had no reason to assume that the statements “The existing contracts are deposits with a three-month notice period” and “We are therefore terminating the existing savings contract with you … in compliance with the three-month notice period …” corresponded to an established legal situation. As a result, the letters of termination objected to lacked the elements required for the facts of § 5 para. 1 sentence 2 case 2 no. 7 UWG.
4. the plaintiff cannot base her claims on Section 2 UKlaG either.
a) The provisions of §§ 3, 5 para. 1 sentence 1 and 2 no. 7 UWG are consumer protection laws within the meaning of Section 2 para. 1 sentence 1 UKlaG (cf. Köhler in Köhler/Bornkamm/Feddersen loc. cit. § 2 UKlaG para. 32). This results from an interpretation of the term consumer protection law in conformity with the Directive. According to Art. 1 para. 2 of the (codified) Injunctions Directive 2009/22/EC, which entered into force on 29 December 2009, an infringement within the meaning of this directive is “any act contrary to the Directives listed in Annex I, as transposed into the national legal order of the Member States, which adversely affects the collective interests of consumers referred to in paragraph 1”. These directives include, according to Annex I no.
11 Injunctions Directive also includes Directive 2005/29/EC. It follows that the provisions of the Act against Unfair Competition, which – like the provisions of Sections 3, 5 para. 1 sentence 1 and 2 no. 7 UWG – serve to implement Directive 2005/29/EC, are to be regarded as consumer protection laws within the meaning of Section 2 para. 1 sentence 1 UKlaG.
b) However, as stated in para. 17 et seq. above – there is no violation of Section 5 para. 1 sentence 1 and 2 case 2 no. 7 UWG.
III. accordingly, the appeal must be dismissed with the consequence of costs pursuant to section 97 para. 1 ZPO must be dismissed.
Koch Schaffert Kirchhoff Löffler Schwonke Previous instances:
Dessau-Roßlau Regional Court, decision of 15/11/2016 – 4 O 106/16 –
OLG Naumburg, decision of 27.04.2017 – 9 U 90/16 –