In a recent decision, the Higher Regional Court of Frankfurt am Main found that the relevant provision of Section 9 (2) ElektroG is a so-called market conduct regulation (OLG Frankfurt a.M., judgment of July 25, 2019, Ref.: 6 U 51/19).
Missing marking with “crossed-out waste garbage can” on lamp
The case in question involved two competitors in the lighting and illuminant sales sector. In the course of a test purchase, it was found that one of the two had not marked the lamp in question with the “crossed-out dustbin” symbol. According to § 9 Abs. 2 ElektroG, however, electrical and electronic equipment must be labeled with the following symbol:
Labeling obligation is market conduct regulation
Based on competition law regulations, the applicant had initially issued a pre-litigation warning about the lack of labeling and subsequently pursued the matter in court. After the Regional Court of Frankfurt a.M. rejected the claim, inter alia with reference to the fact that Section 9 para. 2 ElektroG was not a market conduct regulation, the Higher Regional Court amended this decision at second instance.
A provision is a market conduct regulation within the meaning of competition law if it (at least also) aims to protect the interests of market participants. In the case of the labeling obligation under § 9 para. 2 ElektroG, this is controversial, but can be assumed in the present case:
“In the Senate’s view, however, the fact that the provision indirectly serves to protect consumers speaks in favor of a market conduct regulation. The consumer can see from the symbol at the time of purchase that he cannot dispose of the product in household waste. They are certainly interested in this information because they are made aware that they have to choose a different, usually more costly supply route. The provision of § 9 para. 2 thus regulates a product-related requirement. In the event of infringements, the consumer’s legitimate expectation of being offered a product that complies with the statutory provisions in the customer’s interest is disappointed (see BGH GRUR 2010, 754, para. 21 – Golly Telly).”
OLG Frankfurt a.M., judgment of July 25, 2019, Ref.: 6 U 51/19
Attaching the “crossed-out dustbin” under the lamp is sufficient
The objection of the company concerned that a marking on the lamp should not be included there due to its size or function, but rather on the packaging, in the instructions for use or on the warranty certificate (exception under Section 9 (2) sentence 2 ElektroG) failed. In the opinion of the OLG, the symbol could easily have been affixed to the base of the lamp without impairing its function. There was already a sticker with device specifications there anyway. This type of attachment would also sufficiently meet the requirement of “visibility” and “recognizability”, as information is expected at this point on the appliance.
Violation of the labeling requirement is likely to significantly harm the interests of consumers.
With regard to the further requirement of so-called perceptibility, the OLG also did not see any aspects preventing the competitor’s claim. In the case in dispute, it could not be ruled out that the missing symbol was capable of influencing consumers’ purchasing decisions. Nor was there a lack of perceptibility because the symbol was instead placed in the instructions for use. It could not be assumed that all consumers would take note of or keep the instructions for use. For this reason, the legislator stipulates that the symbol must be affixed directly to the device, not just in documents.
Extensive labeling requirements for the sale of electrical and electronic devices
In addition to many other obligations regarding the labeling of electrical and electronic devices (e.g. energy efficiency), the “crossed-out waste garbage can” should also be the focus of labeling in view of the only partially uniform case law of the higher courts.
The decision of the Higher Regional Court of Frankfurt a.M. corresponds to similar, albeit older, decisions of the Higher Regional Courts of Karlsruhe (judgment of June 11, 2014, Ref.: 6 U 45/14), Nuremberg (judgment of May 13, 2014, Ref.: 3 U 346/14), and Munich (judgment of September 11, 2014, Ref.: 6 U 1363/14).
Only the Higher Regional Court of Cologne takes a different view and does not consider the labeling obligation to be a market conduct regulation (judgment of 20 February 2015, case no.: 6 U 118/14).
In order to avoid incurring considerable (and avoidable) costs for disputes as well as any necessary relabeling, recalls (!) etc. as a result of small errors, labeling should be done carefully and carefully considered.