The First Civil Senate of the Federal Court of Justice, which is responsible for competition law among other things, has ruled that the German Weather Service (DWD) may not offer an app with a wide range of weather information beyond weather warnings free of charge and without advertising.
The plaintiff offers meteorological services such as weather reports via the internet and via an app for mobile devices. The standard version of the plaintiff’s app is free and ad-financed and an ad-free version is available for a fee.
The German Meteorological Service (DWD) is the national meteorological service of the defendant Federal Republic of Germany. Its tasks are regulated in § 4 para. 1 DWDG. These include, for example, the provision of meteorological services for the general public (§ 4 para. 1 no. 1 DWDG) and the issuing of official warnings about weather phenomena (§ 4 para. 1 no. 3 DWDG). The DWD generally charges a fee for its services (Section 6 (2) sentence 1 DWDG). However, the issuing of official warnings about weather phenomena to the general public is free of charge (Section 6 (2a) DWDG). The DWD may itself publicly disseminate such free services in accordance with Section 4 para. 6 DWDG itself may publicly disseminate such free services.
Since June 2015, the DWD has been offering a “DWD WarnWetter app” for mobile devices. This app can be used to access not only weather warnings, but also a wide range of general information on the weather, including detailed weather reports. This app – in the version on which the legal dispute was based – was free of charge and ad-free for all content.
The plaintiff believes that offering and distributing the content of the DWD WarnWetter app free of charge is anti-competitive, as the DWD is only allowed to distribute official weather warnings free of charge. The DWD WarnWetter app discriminates against non-governmental providers of weather applications because it is financed by the state. The plaintiff filed a claim for injunctive relief against the defendant. It based its claim for injunctive relief primarily on competition law provisions and, in the alternative, on public law.
The Regional Court has applied the provisions in § 6 para. 2 sentence 1 and para. 2a DWD, which determine which services the DWD may only provide against payment and which it may provide free of charge, as market conduct regulations within the meaning of Section 3a UWG. The Regional Court considered the free offering of the warning weather app to be a violation of these provisions and therefore ordered the defendant to cease and desist. On appeal by the defendant, the Court of Appeal dismissed the action based on competition law by partial judgment. The Court of Appeal assumed that the defendant had not acted commercially within the meaning of § 2 para. 1 No. 1 UWG. Rather, it had acted to fulfill the public duties assigned to it by § 4 DWDG. Insofar as it may have exceeded its area of competence by not charging a consideration and this violated the German Meteorological Service Act, this did not constitute acting in the course of trade. With regard to the claim for injunctive relief under public law asserted in the alternative, the Court of Appeal referred the legal dispute to the Administrative Court.
The Federal Court of Justice overturned the appeal judgment and essentially restored the judgment of the regional court upholding the claim.
In its reasoning, the Federal Court of Justice essentially stated: The judgment on appeal had to be set aside simply because the Court of Appeal was not permitted to rule on the competition law claims by way of a partial judgment and refer the legal dispute to the Administrative Court on the public law claims. Instead, the Court of Appeal should have examined all possible bases for the claims itself. Nevertheless, the Federal Court of Justice did not have to refer the legal dispute back to the Court of Appeal for a new hearing and decision because it was able to decide the matter conclusively itself on the basis of the findings made by the Court of Appeal.
The lawsuit was then successful. With its offer of a warning weather app, which is free of charge for users and not financed by advertising, the DWD did not act commercially, but solely to fulfill its public duties. However, it exceeded the limits of the authorization basis of § 4 para. 6 DWDG because the content of the free WarnWetter app was not limited to weather warnings, but also contained a great deal of general weather information. The offer of the WarnWetter app must therefore be regarded as a commercial act and measured against the rules of competition law.
With regard to the provisions in § 6 para. 2 sentence 1 and para. 2a DWD, which services the DWD may only provide against payment and which it may provide free of charge, are market conduct regulations within the meaning of § 3a UWG, the violation of which is anti-competitive. It follows from these regulations that the DWD may in principle only provide its services under market conditions and, like any other provider of application software for meteorological services, must either directly demand remuneration for these services or – if the application software is provided free of charge – must indirectly finance these services, for example through advertising revenue. The purpose of these regulations is to limit the DWD’s activities on the market for meteorological services in order to protect private-sector competitors.
(BGH, judgment of March 12, 2020, ref.: I ZR 126/18; press release no. 28/2020 of March 12, 2020)