The Federal Court of Justice (judgment of March 11, 2026, I ZR 28/25) has clarified that a retailer can be liable for competition law infringements in advertisements if a search engine operator designs and publishes the advertisement on the basis of a cooperation agreement. The case thus concerns a highly relevant question in digital sales practice: Who bears responsibility under competition law when advertising is created on the basis of a division of labor?
What were the proceedings about?
The case was brought by a trade association against a mail order company whose products were advertised on a third-party platform. The complaint was that the required energy efficiency label for advertised household appliances was not displayed in the graphic form required by EU law. The advertisement only contained a brief text note, but not the prescribed representation by means of an arrow within the energy efficiency spectrum. The defendant retailer defended itself by claiming that it had neither created nor placed the specific ad itself. Rather, Google had designed and displayed the ads independently as part of a cooperation agreement after the retailer had merely provided product information.
The lower courts had still denied the retailer’s liability. In their opinion, the cooperation with Google did not constitute an extension of the retailer’s business operations; rather, Google was operating its own business with its own scope of action. The BGH did not share this view, overturned the appeal judgment and referred the case back.
Why is the judgment so legally relevant?
The decision is particularly significant because it limits the scope of § Section 8 (2) UWG in the digital advertising environment.
According to this provision, the owner of a company is held responsible for infringements of competition law committed by his agents as if they were his own actions. The BGH thus ties in with the principle of unfair competition law that the organization of advertising based on the division of labour should not eliminate the responsibility of the company. Anyone who uses third parties to advertise their own products should not be able to hide behind their organizational or legal independence.
The Senate has emphasized that an independent company can also be an agent within the meaning of Section 8 (2) UWG. The decisive factor is not how the parties have structured their contractual relationship in detail, but whether the advertising partner is integrated into the business organization of the business owner in such a way that the success of its activity benefits the business owner and the latter has a decisive, enforceable influence on the relevant area of activity. It is precisely these requirements that the BGH has affirmed here.
Why is the retailer liable even though Google designed the ad?
The central point of the decision is that the BGH did not regard Google’s advertising activities as completely independent market behavior.
According to the decision, a company expands its business operations if it entrusts a third party, in whole or in part, with the task of advertising its own product range, which is in principle its own responsibility, and provides the third party with the necessary product information for this purpose. In such a case, the third party acts functionally like an external advertising partner or an advertising agency.
In the opinion of the BGH, the fact that Google had considerable freedom in the specific design, selection and placement of the ad does not prevent attribution. The advertising partner’s freedom of design is not an exceptional case in the digital advertising environment, but rather typical. Rather, the decisive factor is that the advertising is based on the retailer’s information and economically serves its sales interests. The BGH thus clarifies that liability cannot be avoided by outsourcing significant parts of the advertising logic to platforms or search engines.
The court’s statement that it is not important what influence the company has actually secured, but what influence it could and should have secured, is also particularly relevant in practice. Anyone entering into an advertising cooperation must therefore ensure that legally binding information obligations can be complied with at the contractual and actual design stage.
What does this mean in practice?
The ruling affects far more than just energy efficiency information for household appliances. The ruling can be applied to numerous digital advertising constellations in which companies provide product data while third parties automatically compile, enrich or play out the specific ad. This division of labor structure has long been standard in platform and performance marketing in particular. This makes it all the more important for the Federal Court of Justice to clarify that the responsibility under unfair competition law does not end at the interface to the platform.
For retailers, brand owners and other advertising companies, this means that anyone who has product advertising displayed via search engines, marketplaces, comparison platforms or other cooperation partners should not only be aware of the legal requirements for the advertisement in abstract terms, but should also ensure that these requirements are met in organizational terms. In particular, this includes checking whether mandatory information is presented in the respective advertising format in a complete and legally compliant manner, whether there are contractual options for exerting influence and whether technical processes can be adequately controlled.
Our classification
The decision makes it clear that companies are at risk even if they do not formulate or visually implement advertising themselves. Anyone who entrusts third parties with the marketing of their own product range assumes responsibility for the result under unfair competition law. This applies in particular if the advertising partner acts on the basis of product information supplied by the company and the advertising clearly serves to promote the company’s sales.
The delegation of advertising services to Google or comparable platforms does not relieve companies of their responsibility under competition law. The courts already dealt with liability for Google ads in 2017 – the BGH has now confirmed this line for platform advertising based on the division of labor.
