KG Berlin on the cause of action in case of concerns regarding the power of representation

In the underlying case, the defendant received an out-of-court warning due to an infringement of competition law. In his lawyer’s reply, he did not dispute the claim for injunctive relief. However, as the warning letter was neither signed nor accompanied by a power of attorney, he rejected it in accordance with Section 174 sentence 1 BGB. At the same time, however, he made it clear that he was prepared to issue an appropriate cease-and-desist declaration as soon as the warning letter’s power of representation was proven. However, this did not happen. Instead, the warning party filed an action. The defendant then immediately acknowledged the claim. The “only” remaining dispute before the KG Berlin was who was to bear the costs of the proceedings. The KG Berlin was unable to recognize that the defendant had given cause for the action. If a claim is not rejected on the merits, but merely due to – not recognizably pretended – concerns regarding the power of representation and the warned party indicates that it is prepared to eliminate the risk of repetition if the concerns are remedied, there is no reason to bring an action. The costs must therefore be borne by the plaintiff in accordance with. § Section 93 ZPO to be borne by the plaintiff (KG, decision of November 30, 2020, Ref.: 5 W 1120/20).