Competition associations may not unduly favor their own members

In a recent reference decision, the Higher Regional Court of Rostock dealt with the legal abuse of a lawsuit. This was based on the case of a competition association that took action against an entrepreneur due to an infringement of competition law. The entrepreneur considered the action to be abusive because the association would not also take action against its own members who were committing the same infringement of competition law. The OLG pointed out that it also considered the accusation to be a potential abuse of rights pursuant to Section 8 para. 4 UWG. The association’s blanket denial after it had been proven for individual members that they had actually committed an identical infringement was no longer sufficient to satisfy the secondary burden of proof. Admittedly, there may also be legally justifiable reasons to proceed in this way, e.g. to first conduct a test case on a disputed legal issue. However, the association had not submitted any evidence in this regard (OLG Rostock, reference decision of November 17, 2020, Ref.: 2 U 16/19).