Tenor:
1. the action is dismissed.
2. order the plaintiff to pay the costs.
3. the judgment is provisionally enforceable. The plaintiff may avert the defendant’s enforcement by providing security amounting to 110% of the amount enforceable on the basis of the judgment, unless the defendant provides security amounting to 110% of the amount to be enforced prior to enforcement.
Resolution
The amount in dispute is set at € 5,000.00.
Facts:
The plaintiff is asserting a claim for injunctive relief under competition law against the defendant due to an alleged breach of data protection regulations.
The plaintiff is an interest group of online entrepreneurs organized in the form of a registered association. The association has around 2,500 members. Its statutory tasks also include helping to establish fair competition, including the pursuit of competition law claims in court.
The defendant sells motor vehicle accessories via the ebay trading platform. On July 16, 2018, he did not inform users about the type, scope and purpose of the collection and use of personal data.
The plaintiff argues,
Its members included 190 dealers who sell automotive accessories nationwide via e-commerce.
The defendant had breached Section 13 TMG. The provision was still applicable even after the General Data Protection Regulation came into force. In any case, the defendant’s conduct violated Art. 13 of Regulation (EU) 2016/679. The provisions of the General Data Protection Regulation would not exclude claims under the UWG. The main reason for this is that the UWG has a different objective, according to which it does not protect the data subject’s right to informational self-determination but the competitor’s right to undistorted competition. In any case, the claim also follows from the UKlaG.
The plaintiff requests:
The defendant is ordered to cease and desist from any further infringements of this provision and to pay a fine of up to € 250,000.00 to be determined by the court for each case of infringement, or to serve up to 6 months in prison,
to operate a website in business dealings with the consumer concerning motor vehicle accessories,
maintain a website/homepage itself or through third parties on which users can enter personal data for the purpose of establishing contact or communication or for other business purposes without informing the consumer at the beginning of the usage process about the type, scope and purpose of the collection and use of personal data and, if applicable, about the processing of his data in countries outside the scope of Directive 95/46/EC of the European Parliament and of the Council of October 24, 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data in a generally understandable form,
in each case as shown below
In the alternative:
The defendant is ordered to cease and desist from any further infringements of this provision and to pay a fine of up to € 250,000.00 to be determined by the court for each case of infringement, or to serve a period of imprisonment of up to 6 months,
to operate a website in business dealings with the consumer concerning motor vehicle accessories,
maintain a website/homepage itself or through third parties on which personal data is collected for business purposes without a data protection declaration in accordance with Art. 13 para. 1 and 2 of the EU General Data Protection Regulation (GDPR 2016/679) of 27.04.2016 is maintained within its scope of application,
in each case as shown below
The defendant claims,
dismiss the action.
The defendant argues,
the General Data Protection Regulation conclusively regulates the sanctions for infringements. Therefore, claims under the UWG or the UKlaG could only be asserted by associations that meet the requirements of Art. 80 para. 1 of Regulation (EU) 2016/679. This is not the case for the plaintiff.
In any case, the claim for breach of the General Data Protection Regulation was time-barred. A suspension by filing a lawsuit had not occurred, as the violation of Section 13 TMG constituted a different subject matter of the dispute. The information required under Art. 13 of Regulation (EU) 2016/679 has been provided since the beginning of August 2018.
With regard to the further submissions of the parties, reference is made to the exchanged written submissions and attachments as well as to the minutes of the oral hearing of 15.04.2019 (p. 59 et seq. of the file). The plaintiff’s subsequent written submission of 6 May 2019 does not give rise to the reopening of the oral hearing.
Reasons for the decision:
I.
The action is admissible.
1. the applications are sufficiently specific pursuant to Section 253 para. 2 no. 2 ZPO are sufficiently specific. This is not precluded by the fact that both the main motion and the alternative motion refer to statutory provisions. By stating “in each case as reproduced below:”, the plaintiff has made it clear that he is not claiming a prohibition within the scope of the wording of the law, but that his request for injunctive relief is based on the specific act of infringement (see BGH of 29.04.2010 – I ZR 202/07 para. 21 – Reminder advertising on the Internet).
2. the plaintiff is entitled to bring proceedings pursuant to Section 8 para. 3 No. 2 UWG. By submitting the membership lists (Annex K12), he has sufficiently demonstrated that he has a total of 190 members who, like the defendant, sell automotive accessories via the Internet. The membership of a considerable number of members is proven by the submission of invoices (Annex K13). The defendant has not contested these statements. The defendant has not denied the other requirements.
II.
The complaint is not well-founded.
1. in the case of the main claim, a claim under Section 8 para. 1 UWG i.V.m. §§ Sections 3, 3a UWG is precluded by the fact that Section 13 TMG no longer has any scope of application due to Regulation (EU) 2016/679 (General Data Protection Regulation), which has been in force since May 25, 2018. As this is a regulation within the meaning of Art. 288 para. 2 TFEU, it is directly applicable in all member states with the result that national regulations are completely superseded insofar as they fall within the scope of application of European law. This can be assumed for the provision of Section 13 para. 1 TMG, since Art. 13 Regulation (EU 2016/679) also contains provisions on information obligations when collecting personal data (see also Hullen/Roggenkamp in: Plath, DSGVO/BDSG, 3rd edition, Section 13 TMG para. 3). Therefore, the defendant was no longer in breach of Section 13 TMG on 16.07.2018.
2. in the alternative claim, a claim under Section 8 para. 1 UWG i.V.m. §§ Sections 3, 3a UWG is precluded by the fact that the General Data Protection Regulation conclusively regulates the sanctions for infringements and the plaintiff is therefore not entitled to assert claims for injunctive relief.
a) The question of whether the General Data Protection Regulation contains an exhaustive regulation of sanctions is disputed and has not yet been clarified by the highest courts (in particular LG Magdeburg v. 18.01.2019 – 36 O 48/18; LG Wiesbaden v. 05.11.2018 – 5 O 214/18; Köhler in: Köhler/Bornkamm/Feddersen, UWG, 37th ed. Section 3 a UWG para. 1.40 a; Lettl, WRP 2019, 289, against this in particular OLG Hamburg v. 25.10.2018 – 3 U 66/17, without, however, the question being relevant; see also Schmidt, WRP 2019, 27).
b) The court agrees with the view that the General Data Protection Regulation is exhaustive.
aa) This is supported by the fact that the General Data Protection Regulation contains a detailed regulation on sanctions. According to Art. 57 of Regulation (EU) 2016/679, enforcement is the responsibility of the supervisory authorities. In addition, Art. 77 et seq. Regulation (EU) 2016/679 contain provisions on legal remedies. According to Art. 79 of Regulation (EU) 2016/679, every data subject, i.e. the person whose data protection rights have allegedly been infringed, has the right to an effective judicial remedy. The representation of data subjects is regulated in Art. 80 of Regulation (EU) 2016/679. According to paragraph 1, the data subject can instruct certain bodies to enforce their rights. In addition, according to paragraph 2, Member States may provide that certain bodies enforce the rights even without a mandate within the meaning of paragraph 1. This expresses the fact that the European legislator only wants to allow unauthorized prosecution of infringements by third parties if the conditions specified in the standard are met and the national legislator has regulated this. With regard to this specific provision, it cannot be assumed that the right of third parties to bring an action follows from the provisions of Art. 82 or Art. 84 of Regulation (EU) 2016/679 (see also Köhler in: Köhler/Bornkamm/Feddersen, UWG, 37th edition, Section 3 a UWG para. 1.40 e). If the European legislator had wanted to regulate a more extensive right of action for third parties with the provisions, then the provision in Art. 80 para. 2 of Regulation (EU) 2016/679 would not have been necessary.
bb) However, if a conclusive regulation has been made in the General Data Protection Regulation, enforcement via the UWG cannot be justified with a different objective of competition law (BGH v. 07.02.2006 – KZR 33/04 – trial subscription; but so OLG Hamburg v. 25.10.2018 – 3 U 66/17). Otherwise, the differentiated regulation in the General Data Protection Regulation would be thwarted, which cannot be reconciled with the primacy of European law. This applies all the more as the General Data Protection Regulation does not have a competition protection objective. According to Art. 1 para. 1 of Regulation (EU) 2016/679, it serves to protect natural persons with regard to the processing of personal data. However, the protection is not based on the status as a consumer but is independent of this.
c) The German legislator has not made use of the authorization in Art. 80 para. 2 Regulation (EU) 2016/679 (cf. also Köhler in: Köhler/Bornkamm/Feddersen, UWG, 37th edition, Section 2 UklaG para. 29 e). The fact that it is the legislator’s intention to use the provision of Section 8 para. 3 No. 2 UWG as an implementation of the General Data Protection Regulation. The Act on the Adaptation of Data Protection Law to the Regulation (BGBl. I 2017, 2097) does not contain any comments on this. In addition, the authorization in Art. 80 para. 2 Regulation (EU) 2016/679 is also narrower than Section 8 para. 3 No. 2 UWG. According to the European provision, the body must be active in the area of protecting the rights and freedoms of data subjects with regard to the protection of their personal data. This requirement is not covered by Section 8 para. 3 No. 2 UWG does not recognize this requirement.
3. due to the final regulation of the General Data Protection Regulation, the plaintiff is also not entitled to injunctive relief under the UKlaG. In this respect, what has been said about the UWG applies accordingly (see also Köhler in: Köhler/Bornkamm/Feddersen, UWG, 37th edition, Section 2 UklaG para. 29 e). Section 2 para. 1 No. 11 UKlaG expressly mentions provisions that regulate the admissibility of the collection of personal data. However, the provision was included in the law long before the General Data Protection Regulation. In this respect, too, it cannot be assumed that it is the legislator’s intention to regard the provision of Section 3 para. 1 no. 2 UKlaG as an implementation of the General Data Protection Regulation, since the further requirements of Art. 80 para. 2 Regulation (EU 2016/679) are not taken into account.
III.
The decision on costs follows from Section 91 ZPO, the decision on provisional enforceability from Sections 708 No. 11, 711 ZPO.