Two parties argued before the Higher Regional Court of Frankfurt am Main about the breach of information obligations in the context of an online store. One party is an organic farmer and sells grain from its own cultivation. He also offers muesli made from his own grain and purchased ingredients. These products can be ordered via a website and collected from the farm by arrangement. He does not have a farm store.
Appeal following rejection of an application for an interim injunction
The other party operates an online store through which it sells muesli mixes. The latter issued a warning to the organic farmer for violating statutory information obligations. After the latter rejected the warning, the operator of the online store applied for an interim injunction. The competent court rejected this application on the grounds that there was no concrete competitive relationship between the parties. The online store operator appealed against this decision.
Does a competitive relationship exist despite different distribution channels?
The decisive factor for the success of this appeal is whether a competitive relationship existed between the two parties. In the interests of effective protection of individuals under competition law, no high requirements need to be placed on the existence of a specific competitive relationship. It is sufficient that the infringer is in some way in competition with the affected party in the specific case.
In its ruling of November 11, 2021 (Ref.: 6 U 81/21), the court first found that the parties both offer muesli mixes and corresponding ingredients – i.e. interchangeable products. According to the Senate, the products are also aimed at the same customer group, namely end consumers. It does not matter whether the farmer is partly active at an upstream economic level, namely as a supplier to farm stores.
Nor does it matter that he only sells large quantities of 5 kg or more. Finally, it is also not relevant that the parties use completely different distribution channels (online shipping or e-mail ordering and collection at the farm). This is because the entitlement under competition law does not depend on the scope and nature of the competitor’s business activities.
Increased risk of breaches of competition law
As a result, the Frankfurt judges affirmed a concrete competitive relationship and upheld the online retailer’s appeal. For self-employed persons and store operators, this means above all an increased risk of competition law infringements. This is because the higher court case law apparently sets the hurdle for a competitive relationship very low.