The German mineral water industry has taken action against a water association in preliminary injunction proceedings. On its website, under the heading “Drinking water and mineral water in comparison”, the association had provided information about the quality of the drinking water it supplied to the town and described it as “healthy”, among other things. The mineral water industry saw this as a violation of competition law. Because acc. According to the so-called Health Claims Regulation (HCVO), very strict conditions are attached to health-related advertising claims. For example, the claim must have been scientifically recognized by a food safety authority. This was not the case here.

Munich Higher Regional Court denies commercial act by public authorities

This application was successful before the Landshut Regional Court and resulted in a temporary injunction being issued against the water association. However, in its judgment of May 7, 2020, the Higher Regional Court of Munich rejected the maintenance of the preliminary injunction (Higher Regional Court of Munich, judgment of May 7, 2020, Ref.: 29 U 769/20). The court did not consider the claim to be a “commercial act” within the meaning of Section 2 para. 1 no. 1 UWG and also no “commercial communication” within the meaning of Art. 1 para. 2 sentence 1 of the HCVO.

In principle, a commercial act is any conduct by a person for the benefit of their own or another person’s business that is objectively connected with the promotion of the sale or purchase of goods or services or with the conclusion or performance of a contract for goods or services. This term is very broadly defined and the case law does not set high requirements.

However, the assumption of a commercial act is particularly problematic if the relevant act is carried out by a public authority. As a public corporation, the water association is undoubtedly tasked with supplying the residents of the municipality with drinking water. However, this alone would not exclude the possibility that it was (also) acting in a commercial capacity when it created the contribution.

Authorization basis can exclude commercial action

The Munich judges saw the contribution of the water association as information about the quality of the drinking water, which the association was expressly authorized to do by law and even obliged to do in accordance with § 21 TrinkwV. § 21 TrinkwV even obliged to do so. The association was therefore primarily concerned with fulfilling its duty to provide information, meaning that the law on fair trading did not apply. This would only be the case if the public sector clearly leaves its area of responsibility or intervenes in competition without a legal basis.

The Senate underlines this consideration by stating that a possible promotion of drinking water over mineral water was not intended. However, this would be absolutely necessary for a “commercial communication” within the meaning of the HCVO:

“Irrespective of this, the challenged text does not contain any statement that can be understood to mean that the readers addressed should consume more tap water and thus promote the defendant’s sales: The Zweckverband is clearly not interested in selling water, but in providing information that the water coming out of the tap there can also be used for drinking without hesitation.”

OLG Munich, judgment of May 7, 2020, Ref.: 29 U 769/20

If residents of the municipality drink less mineral water and more tap water in future as a result of this information, this is purely a reflex, but was not the aim of the water association.

Public authorities can also continue to advertise anti-competitively

Finally, the judges of the OLG Munich emphasize that the decision does not contradict the decisions of another senate of the court. In its ruling of September 16, 1999 (Ref.: 6 U 2646/98), the court had prohibited the Munich municipal utilities from using the advertising slogan “Hängen Sie noch an der Flasche” (“Still hang on to the bottle”) when they had advertised their drinking water in comparison to mineral water. This was precisely the decisive difference: whereas the water association had (only) fulfilled its duty to provide information about the quality of the drinking water, the Munich municipal utilities had clearly carried out advertising – and thus a commercial act.