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Regional Court Essen, judgment of June 3, 2020, Ref.: 44 O 34/19

3,000 € contractual penalty for failure to provide information on the supervisory authority

Tenor

The defendant is ordered to pay the plaintiff € 3,000.00 plus 5 percentage points interest above the respective prime rate since June 21, 2018.

Orders the defendant to pay the costs.

The judgment is provisionally enforceable against security amounting to 110% of the amount to be enforced in each case.

Facts of the case

The parties are in dispute about the payment of a contractual penalty in connection with claims for injunctive relief under competition law.

The plaintiff is an association of medium-sized companies and tradespeople for the promotion of commercial interests. The defendant operates a real estate brokerage firm in the district of S and offers its services relating to the sale of real estate on the internet platform “J”. There is also a corresponding G website in the name of the defendant.

The plaintiff sent the defendant a warning letter dated March 19, 2018 due to incomplete or incorrect imprint information on the internet platform “J”.

In accordance with the declaration of discontinuance attached to the warning letter, the defendant then undertook to acknowledge the infringement of competition, to refrain from offering telemedia without naming the supervisory authority that monitors the obligations resulting from the granting of the license pursuant to Section 34 c GewO and to bear the costs incurred as a result of the warning letter. For each case of infringement of this obligation, the defendant promised to pay a contractual penalty of EUR 3,000.

The plaintiff subsequently established that the defendant continued to offer telemedia on its website (www.J1.de) without referring to the correct competent supervisory authority in the legal notice even after the declaration of discontinuance had been issued. According to the plaintiff’s letter of 14.5.2018, this was the district of S, L-Allee … in … S1 and not, as stated, “Supervisory authority: City of S2, Ordnungsamt, S3-Str. … in … S1”. Secondly, the G-appearance in the name of the defendant lacked any mention of the competent supervisory authority.

The plaintiff informed the defendant of these two facts on May 14, 2018 and demanded payment of EUR 3,000 from the defendant with a deadline of May 28, 2018. Although, in the plaintiff’s opinion, there were two breaches, the claim was limited to 3,000 euros.

The defendant paid the EUR 3,000, but the plaintiff discovered in a letter to the defendant dated June 12, 2018 that although the information on the homepage had been corrected, there was still a website on the G platform that did not contain any information about the supervisory authority in the legal notice. The plaintiff then demanded payment of a further EUR 3,000 by 20.6.2020. After two extensions of the deadline were granted, the defendant refused payment in a letter dated July 4, 2018.

The plaintiff is of the opinion that he is entitled to the injunctive relief as well as a claim for payment of the effectively agreed contractual penalty. This arises from the defendant’s continued breach of the declaration to cease and desist, as the imprint of the G-site in the name of the defendant – undisputed between the parties – did not list the name of the competent supervisory authority on 11.6.2018 and beyond.

The plaintiff requests,

order the defendant to pay the plaintiff EUR 3,000 plus interest of five percentage points above the prime rate since June 21, 2018.

The defendant claims,

dismiss the action.

The defendant complains that the Regional Court lacks subject-matter jurisdiction.

The defendant also believes that the clause on the agreed contractual penalty is invalid pursuant to Section 307 para. 1 BGB (German Civil Code) because it is unreasonably disadvantageous.

The unreasonable disadvantage arises on the one hand from the fact that the immediate deletion of the defendant’s G-site is impossible. During the deletion process initiated by the defendant’s letter to G1 GmbH dated July 4, 2018, access to the site was not possible. The plaintiff was aware of this obligation to perform an act that was impossible for the defendant when submitting the cease-and-desist declaration. On the other hand, the ineffectiveness results from the fact that the plaintiff requested the defendant to name the district of S as the competent supervisory authority in a letter dated May 14, 2018. In the defendant’s opinion, this constituted a breach of the cease-and-desist declaration, as the district was not an authority. Therefore, the plaintiff was in breach of competition law. Furthermore, the amount of the clause also constituted an unreasonable disadvantage.

In the opinion of the defendant, the claim for the contractual penalty was itself an abusive breach of competition law and could therefore not be enforced.

Incidentally, she had not initiated the G-page, so that the contractual penalty was not forfeited. Rather, a former employee had created the page without the defendant’s knowledge and will. This employee no longer remembered the access data, so that the defendant was only able to delete it.

Also, due to the close temporal and substantive connection, there is only one infringement. Furthermore, the defendant invokes forfeiture.

Reasons

The action is admissible.

The Regional Court of Essen has jurisdiction irrespective of the amount in dispute pursuant to Sections 13 para. 1 S. 1, 14 UWG with subject matter and local jurisdiction. It is true that the action here is based on a contractual penalty agreement caused by competition law and therefore not a claim based on the UWG, but on the BGB. However, according to the case law of the BGH, the regional court also has jurisdiction at first instance in this case, regardless of the amount in dispute (BGH of October 19, 2016 – I ZR 93/15 – WRP 2017, 179, para. 21 f.).

The complaint is also well-founded.

The plaintiff is entitled to payment of the contractual penalty in the amount of € 3,000.00 against the defendant pursuant to Section 339 p. 1, 2 BGB in conjunction with the declaration to cease and desist, § 311 para. 1 BGB. The parties have concluded an effective cease and desist agreement with an effective contractual penalty agreement. A corresponding contract with a promise of penalty within the meaning of Sections 339 et seq. BGB was established by the defendant’s declaration to cease and desist dated 28.3.2018 and acceptance by the plaintiff on 29.3.2018. In this declaration, the defendant undertakes vis-à-vis the plaintiff to refrain from offering telemedia within the meaning of Section 1 para. 1 of the German Telemedia Act (TMG) without indicating the competent supervisory authority, which monitors the obligations resulting from the granting of the license pursuant to Section 34 c GewO, in the imprint in an easily recognizable, directly accessible and permanently available manner. In the event of infringement, the defendant undertook to pay the plaintiff a contractual penalty of EUR 3,000.

Contrary to the opinion of the defendant, this contract is also valid as a whole. In particular, it is not invalid pursuant to Section 307 (1) BGB. Sections 305 et seq. BGB are applicable to cease and desist agreements with the proviso that the content review in commercial transactions is based on Sections 307, 310 para. 1 BGB (Schaub in: Erman, BGB, 15th ed. 2017, preliminary remark before Section 339, para. 4; ibid., Section 339 BGB, para. 1). There is a general business condition within the meaning of Section 305 (1) BGB. The agreement, which forms the basis of the asserted contractual penalty claim, is a general business condition of the plaintiff, which the plaintiff unilaterally imposed without having previously negotiated it within the meaning of Section 305 (3) BGB. This is supported by the fact that the declaration to cease and desist was already sent with the warning letter. Furthermore, it follows from the content (“I/we commit myself/ourselves”) that these are pre-formulated conditions for a large number of cases within the meaning of Section 305 (1) BGB. The review of content is also possible in accordance with Section 307 (3) BGB, as these are not merely declaratory provisions, nor are they principal obligations or the relationship between performance and consideration. However, there is no unreasonable disadvantage contrary to the requirements of good faith as alleged by the defendant. An unreasonable disadvantage within the meaning of Section 307 (1) BGB exists if the user of the clause abusively attempts to assert his own interests at the expense of the contractual partner without sufficiently taking into account those of the contractual partner from the outset (BGH, judgment of November 13, 2013 – I ZR 77/12 – , para. 13). The examination is based on a generalizing, supra-individual standard, which is to be based on an abstract, typifying consideration of the particularities existing in the individual case (Beater in: Herberger/Martinek/Rüßmann/Weth/Würdinger, jurisPK-BGB, 9th edition, Section 339 BGB (as of February 1, 2020), para. 75; BGH, judgment of November 13, 2013 – I ZR 77/12 -, para. 13).

According to this generalizing standard, the declaration of discontinuance does not oblige the defendant to perform an act that is impossible for it. In the declaration to cease and desist, the defendant merely undertook to refrain from offering telemedia without naming the supervisory authority. In this respect, the defendant’s assertion that there is a case of subjective impossibility is incorrect, as it is not clear why the defendant cannot generally name the correct supervisory authority.

The defendant can also not be heard with the assertion that an unreasonable disadvantage arises from the fact that the plaintiff stated in a letter dated 14.5.2018 that the supervisory authority responsible for the defendant is the district of S. In this respect, it is not clear how the statement on 14.5.2018 should affect the effectiveness of the declaration of discontinuance previously issued on 28.3.2018. This is because the time of assessment for the existence of the requirements of Section 307 para. 1 BGB is the time of the conclusion of the contract (see BGH, judgment of March 30, 2010 – XI ZR 200/09, NJW 2010, 2041 para. 30; BGH, judgment of November 13, 2013 – I ZR 77/12 -, para. 13).

There is also no unreasonable disadvantage to the contractual partner within the meaning of Section 307 (1) BGB due to a substantial and unusual contractual penalty in this amount. § Section 348 HGB does not affect the review of the content of the clause (Steimle/Dornieden in: Röhricht/Graf von Westphalen/Haas, HGB, 5th ed. 2019, Section 348 HGB, para. 18). The amount of the contractual penalty of EUR 3,000 is appropriate because the defendant has repeatedly breached the cease-and-desist agreement. The defendant must be required by a high contractual penalty to refrain from offering telemedia within the meaning of Section 1 (1) TMG in the future without indicating the competent supervisory authority in the imprint, which monitors the obligations resulting from the granting of the license pursuant to Section 34c GewO, in an easily recognizable, directly accessible and permanently available manner within these offered telemedia. In commercial transactions, the party seeking injunctive relief is generally less worthy of protection and the preventive function of the penalty prevails (Beater in: Herberger/Martinek/Rüßmann/Weth/Würdinger, jurisPK-BGB, 9th edition, Section 339 BGB (as at: 01.02.2020), para. 83). The impending penalty must also be set at a high level, as the party obliged to cease and desist is not, as in the case of exchange contracts, required to comply with the contract due to its own contractual self-interest.

The limit, which is only to be exceeded if the penalty “is already at first glance disproportionate to the breach sanctioned by the contractual penalty and the risks associated with possible future breaches for the injunction creditor” (BGH 13. 11. 2013 – I ZR 77/12, NJW 2014, 2180, para. 19), has not been reached here.

This is because these are not minor infringements that cannot be warned. This applies on the one hand because the declaration to cease and desist secured by a contractual penalty was expressly made in recognition of the infringements of competition law complained of. With the contractual safeguarding of a statutory obligation, the parties generally also agree that the statutory obligation exists (cf. Rieble in: Staudinger (2015), Vorbemerkungen zu §§ 339 ff, para. 103). In the present case, the contractual penalty serves to enforce such a statutory obligation under Section 5 para. 1 no. 3 TMG. In this respect, the defendant cannot be heard to argue that the omission of the information does not constitute a breach, as it has previously acknowledged precisely this breach of statutory provisions. There is also in fact a violation of Section 3a UWG, so that the contractual text of the declaration of discontinuance does not go any further than required by the statutory provisions of competition law. § Section 5 TMG contains market conduct rules. Failure to comply with the information obligations set out therein is always noticeable within the meaning of Section 3 a UWG, as the consumer protection provisions contained therein serve to implement Union law (see BGH, judgment of 25.02.2016 I ZR 238/14, para.34).

Secondly, the contractual penalty is also not disproportionate to the sanctioned breach and the risks associated with a possible future breach for the injunction creditor. § Section 5 para. 1 No. 3 TMG serves the purpose of consumer protection and transparency (see OLG Düsseldorf, judgment of 26.07.2017 I – 15 U 100/16, p.7). This is intended to enable the consumer to obtain information from the specified supervisory authority about the existence of the license (e.g. the license pursuant to Section 34 c I No. 1 GewO) and thus ultimately about the reliability of the trader. In view of this objective, an important goal, compliance with consumer protection regulations, is thus being pursued.

Furthermore, the infringement of the market conduct rules of Section 5TMG must also be seen in connection with the great economic benefit of the Internet for the defendant and the high reach of business traffic that can be achieved as a result. Insofar as the defendant wishes to advertise its services on the Internet, it must also exercise the appropriate entrepreneurial diligence and otherwise accept the consequences of incorrect or missing information.

This cease-and-desist agreement was breached in that, at least on June 11, 2018, the responsible supervisory authority was not stated in the legal notice of the website on Platform G, contrary to Section 5 para. 1 no. 3 TMG was missing and thus the contractual penalty was forfeited, Section 339 p. 2 BGB.

The defendant is also responsible for this breach. The standard of liability is based on §§ 276, 278 BGB, § 347 I HGB. The debtor, i.e. the defendant, bears the burden of proof for the absence of the generally presumed fault (Beater in: Herberger/Martinek/Rüßmann/Weth/Würdinger, jurisPK- BGB, 9th edition, Section 339 BGB (as at: 01.02.2020), para. 66). It is true that the defendant argues that it has fulfilled its obligation resulting from the cease-and-desist declaration by making every effort to influence the former employee and requesting G to delete the content.

However, this is irrelevant, as fault on the part of the former employee can also be attributed to it in accordance with Section 278 Alt. 2 BGB is attributable to it. According to this, the debtor must also allow the fault of its vicarious agents to be attributed to it with regard to an omission (Caspers in: Staudinger, 2019, BGB Section 278, marginal no. 42; Heymann in: Heymann, HGB, 2nd edition, Section 348, marginal no. 5). This idea, as Section 8 (2) UWG shows, is also not foreign to competition law. It is precisely such constellations in which the company owner wants to hide behind his employees that are to be prevented. Even if the employee leaves the company in the meantime, this does not change the liability of the company owner (Seichter in: Ullmann, jurisPK-UWG, 4th edition, Section 8 UWG (as of March 26, 2020), para. 151). Insofar as the defendant argues that the infringement of competition law was not committed by it, but by a former employee, this does not lead to a rebuttal of the presumption of fault.

Rather, the defendant must also accept responsibility for infringements of competition law (BGH 15.5.1985 – I ZR 25/83, NJW 1986, 127; BGH 30.3.1988 – I ZR 40/86, NJW 1988, 1907, 1908; BGH 22.1.1998 – I ZR 18/96, NJW 1998, 3342, 3343 f.; BGH 30.4.1987 – I ZR 8/85, NJW 1987, 3253 f.; OLG Frankfurt 6.6.1974 – 6 U [Kart] 15/74, NJW 1974, 2239; OLG Jena 5.5.2015 – 2 U 41/15 Rn. 4, WRP 2015, 1016).

The infringement is also not already compensated for by the payment made by the defendant on 29.5.2018. This is because the parties have agreed in their penalty agreement that the contractual penalty shall be forfeited for each infringement. In any case, an interval of almost one month between the respective reminders does not seem to indicate a uniform infringement in terms of time. Furthermore, the purpose of the warning under competition law does not support the assumption of only one infringement. This is because the declaration to cease and desist does not indicate the intention to warn only one infringement and to tolerate existing or further infringements.

The assertion of the contractual penalty is also not precluded by the “venire contra factum proprium” requirement arising from Section 242 BGB. The objection of abusive conduct would be justified if, from an evaluative point of view, the creditor is ultimately solely responsible for the forfeiture of the penalty. Here, the defendant refers to the letter dated 14.5.2018, in which the plaintiff informed “Kreis S, L-Allee … in … S1” as the competent supervisory authority.

In this respect, the accusation that the plaintiff acted inconsistently may not justify exclusion pursuant to Section 242 BGB. In the present case, relevant contradictory conduct could only be assumed if the plaintiff’s conduct had been the cause of the breach of the cease-and-desist declaration. However, this is not the case. This is because a correct imprint was not provided at all and was not merely incorrect due to the named plaintiff’s letter.

Here, however, it is not clear why any inaccurate information provided by the supervisory authority by the plaintiff was the reason for the fact that G did not provide any information at all. Ultimately, it is also the responsibility of the defendant to ensure that the telemedia attributable to it complies with the legal requirements.

Furthermore, the assertion of the contractual penalty from this point of view is not precluded by the assessment resulting from Section 8 (4) UWG. An abuse would presuppose that the creditor was guided by motives unrelated to the law when asserting the claim (Seichter in: Ullmann, jurisPK-UWG, 4th edition, Section 8 UWG (as of March 26, 2020), para. 201). The decisive factor in determining such abuse in the present case must be the legal policy purpose intended by Section 8 (4) UWG, namely the limitation of a commercial warning system. Corresponding facts that could justify such an assumption were not presented by the defendant.

With regard to the alleged subjective impossibility, the defendant’s submission is contradictory, so that this cannot be taken into account in the context of a subsequent review of the content in accordance with Section 242 BGB. It is true that it claims that it does not have the access data for the G-site itself. On the other hand, she claims in the pre-trial pleadings that she initiated the “system-inherent deletion function” and quotes the confirmation sent by G (“Please note that your page will only be permanently deleted after 14 days”). In this respect, it is not clear to the court how such a system-inherent deletion could take place at all without knowledge of the access data, which can inevitably only be carried out by the authorized operator of the site after confirmation of the access data. If the defendant signs such a declaration to cease and desist, it is incumbent on the defendant to ensure as best as possible that further infringements do not occur (see BGH, judgment of November 13, 2013 – I ZR 77/12 -, para. 26). In the abstract, this would simply have required inserting the correct information accordingly. If, on the other hand, the defendant chooses to delete its account on its own initiative, this does not constitute an obligation to take an impossible action, but is merely an expression of its inability to act in accordance with the obligation given. In this sense, by initiating the deletion process, the defendant has relinquished its influence through its own fault.

The assertion is also not precluded by the aspect of the inadmissible exercise of rights in the sense of forfeiture. In order for forfeiture to be assumed, there must be a time and a circumstance. The creditor must not have exercised a right to which it is entitled within a certain period of time, so that the debtor could reasonably rely on no further claims being asserted against it (Looschelders/Olzen in: Staudinger, 2019, BGB Section 242, marginal no. 300). The defendant wrongly argues that the fact that the plaintiff has refrained from pursuing the claim since 22.6.2018 justifies the forfeiture of the right. This is because it is precisely in the letter of 22 June 2018 that the plaintiff reserves the right to exercise his rights by clarifying that the current refraining from taking legal action does not imply toleration of existing or further infringements. Furthermore, the consumer protection pursued by Section 5TMG and the interest of the general public in its strict enforcement argue against a forfeiture.

The asserted interest claim arises from §§ 280 para. 1 and 2, 286, 288 para. 1, 247 BGB. The letter dated 12.6.2018 had the effect of establishing default. The contractual penalty asserted is effective and enforceable. After the deadline expired on 20.6.2018, payment was due, meaning that the defendant was in default on 21.6.2018. The presumption of fault pursuant to Section 286 para. 4 BGB was not rebutted. In his letter dated 15.8.2019, the plaintiff refers to the letter dated 14.5.2018, which is said to have justified the default from 21.6.2018. However, the contractual penalty demanded in the letter of 15.8.2019 was undisputedly paid, so that the defendant cannot be in default with this. However, in view of the correctly stated start of default (21.06.2018), the plaintiff’s letter must be interpreted as referring to the letter of 12.6.2018 and the new contractual penalty demanded therein.

The procedural ancillary rulings are based on Sections 91 para. 1 sentence 1, 709 sentences 1 and 2 ZPO.

The amount in dispute for the legal dispute is set at € 3,000.

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