According to § 9 (2) ElektroG, electrical appliances must be permanently marked with the symbol of a crossed-out wheeled bin shown below:
The defendant in the proceedings put a lamp, i.e. an electrical appliance, on the market which did not bear this symbol on the product itself. In doing so, the defendant had violated the provision of § 9 (2) ElektroG.
The applicant was a competitor of the defendant. It applied for a temporary injunction prohibiting the defendant from marketing lamps which did not display the symbol in question. Whether or not that application could be granted depended on whether or not the provision of Paragraph 9(2) of the ElektroG constituted a market conduct provision within the meaning of Paragraph 3a of the UWG.
This is disputed in case law. First of all, it must be taken into account that regulations that serve to protect the environment are generally not market conduct regulations (BGH, GRUR 2015, 1021, marginal no. 15 – headphone labelling). In a judgment of 20 February 2015, the Higher Regional Court of Cologne took the view that the Elektrogesetz pursues primarily waste management objectives in accordance with its legislative purpose, so that a market conduct regulation within the meaning of § 3a UWG would accordingly not exist. The fact that the environmentally sound use of natural resources would ultimately also avoid health risks for the consumer is not sufficient for the affirmation of a market conduct regulation. This connection applies to all regulations serving environmental protection (GRUR-RS 2015, 07009).
The Frankfurt am Main Higher Regional Court came to a different conclusion. The provision of § 9 (2) ElektroG indirectly serves consumer protection. The consumer could already recognize at the time of purchase from the symbol that he could not dispose of the product in household waste. In this information it has quite interest, because it is made clear to him that he must select another, usually more complex supply way. In addition, the legislator added the following sentence 3 to § 1 ElektroG with effect from 20 October 2015: “In order to achieve these waste management goals, the law should regulate the market behaviour of the obligated parties.“
With this reasoning, the Higher Regional Court of Frankfurt am Main assumed that the provision of § 9 (2) ElektroG would be a market conduct provision within the meaning of § 3a UWG. Accordingly, the Higher Regional Court of Frankfurt am Main – unlike the first instance – granted the application for a temporary injunction.
Anyone who thus wishes to make claims against a competitor under the UWG for a violation of § 9 (2) ElektroG should initiate such proceedings in Frankfurt. However, it does not follow from the decision that the other provisions of the ElektroG can also be regarded as market conduct regulations within the meaning of § 3a UWG. This must be examined separately in each individual case.
