So what specific changes in the law do we have to be prepared for?
Section 1 (2) UWG (new version): Principle of Speciality
First of all, Section 1 (2) UWG (new version) stipulates that provisions regulating special aspects of unfair acts take precedence over the UWG provisions when assessing whether an unfair commercial act exists. Section 1 (2) UWG (new version) thus does nothing more than establish the general principle of speciality, which has already been anchored in German law up to now – so it does not bring anything new.
Expansion of the legal definitions contained in Section 2 UWG
The legal definitions contained in Section 2 UWG are arranged in alphabetical order and expanded by some definitions of terms:
Section 2 (1) no. 2 UWG (new version), the legal definition of a commercial act, clarifies that “goods and services” also include digital contents and services and that for a “commercial act” to exist there must not only be an “objective”, i.e. functional connection with the promotion of the sale or purchase of goods and services, but also a “direct” connection. According to the explanatory memorandum, the latter is lacking if an influencer recommends goods or services without receiving anything in return.
In addition, the list of legal definitions has been expanded to include the terms “online marketplace” and “ranking”:
New version of the misleading advertising provisions, Sections 5, 5a and 5b UWG (new version)
The provisions contained in the previous Sections 5 and 5a UWG have been restructured in Sections 5 – 5b UWG (new version) in order to improve the readability of the provisions.
A new provision is Section 5 (3) no. 2 UWG (new version) According to this provision, a commercial act is also misleading if it markets a product in an EU member state as being identical to a product made available on the market in other EU member states, although these products differ substantially in their composition or in their integrity, and this is not justified by legitimate and objective factors (so-called “dual quality“). The addressees of the regulation are thus first and foremost the manufacturers of branded products who decide on the use of the brand and the recipe.
In addition to the use of the same trademark, “identical marketing” within the meaning of Section 5 (3) no. 2 UWG (new version) requires that the product is offered in a matching presentation. The decisive factor is whether the consumer can easily recognise existing differences in the presentation of the product. In this respect, the front label of the product is primarily decisive. The correct wording of the list of ingredients will probably not be sufficient in case of doubt.
Furthermore, the elements of Section 5 para. 3 no. 2 UWG (new version) require that the labelled goods differ substantially from each other in their composition or their integrity. In the case of foodstuffs, this may be the case if the individual ingredients are used in different quantities or the declared nutritional values differ by 10%.
However, identical labelling and product presentation despite significant differences in the product composition is only misleading if there is no justification for it. Such justification may be, for example, different national laws, different availability or seasonality of raw materials or different eating habits in the individual geographical markets.
Section 5a (1) UWG (old version), according to which, when assessing whether the concealment of a fact is misleading, its significance for the consumer’s business decision and its suitability for influencing the decision must be taken into account, was repealed and the other provisions of Section 5a UWG (old version) were restructured.
Section 5a (4) sentence 1 UWG (new version) obliges the consumer to disclose the commercial purpose of a commercial act, unless this purpose can be derived directly from the circumstances. The new sentence 2 of Section 5a (4) UWG (new version) also clarifies that a commercial purpose does not exist in the case of an act in favour of another company if no consideration is given. Pursuant to sentence 3 of the provision, the receipt or promise of a consideration is presumed, unless the trader makes it credible that he has not received any consideration. As the term “prima facie evidence” makes clear, it is not necessary to render full proof of the absence of consideration; rather, the submission of an affidavit is also admissible within the meaning of section 294 of the Code of Civil Procedure. In this respect, sentence 3 of the provision contains not only a reversal of the burden of proof but also a reduction of the standard of proof.
Section 5b (1) UWG (new version) provides a definition – only valid for consumer transactions – of “public information” within the meaning of Section 5a UWG (new version). This includes
– all essential characteristics of the goods or services in a scope appropriate to the means of communication used,
– the identity and address of the trader,
– the total price together with all additional costs,
– the terms of payment, delivery and performance, insofar as they deviate from the requirements of entrepreneurial diligence,
– the existence of the right of withdrawal or cancellation, and
– in the case of goods or services offered through an online marketplace, information on whether the provider of the goods or services is a trader.
If a trader makes consumer reviews of its goods and services available, it must also provide information on whether and how it is ensured that the published reviews come from persons who have actually used or purchased the goods or services.
Prohibition of infringement of consumer interests, Section 5c UWG (new version)
In the new Section 5c UWG, those unfair acts are listed which, according to Section 19 UWG (new version), can also be punished with a fine. In detail this concerns
Section 5c UWG (new version) is intended to enable uniform and thus effective enforcement of consumer rights throughout Europe.
Section 9 UWG (new version) – Compensation for Damages
Pursuant to Section 9 (1) UWG (new version), a person who intentionally or negligently commits a commercial act that is unlawful under Sections 3 or 7 UWG (new version) is obliged to compensate competitors for the resulting damage. The new paragraph 2 inserted into the provision now also gives consumers the right to claim damages. However, consumers are still not entitled to injunctive relief.
The claim for damages under Section 9 (2) UWG (new version) presupposes that the consumer was induced to make a business decision that he would not otherwise have made by a commercial act that is unlawful under Section 3 UWG (new version). Thus, business acts according to Sections 3a, 4, 6 and 7 UWG (new version) as well as according to no. 32 of the appendix to Section 3 (3) UWG (new version) do not justify compensation. Moreover, only such damages are to be compensated which result directly from the business decision taken by the consumer, not, however, any consequential damages. Other claims for damages of the consumer, e.g. on the basis of civil law provisions, remain unaffected.
Jurisdiction, Section 14 (4) UWG (new version)
Pursuant to Section 14 (4) UWG (new version), the jurisdiction of the courts for consumer claims for damages based on Section 9 (2) UWG (new version) is governed by the general provisions. Thus, the local courts have subject-matter jurisdiction for actions for damages with an amount in dispute of not more than € 5,000 pursuant to Section 23 no. 1 GVG (Courts Constitution Act). With this provision, the legislator wanted to prevent an overloading of the district courts, which otherwise have exclusive jurisdiction for unfair competition cases, and to keep costs low for consumers who file complaints.
New Elements in the Annex to Section 3 (3) UWG (new version)
The Annex to Section 3 (3) UWG was amended by the Act to Strengthen Consumer Protection by adding Nos. 11a, 23a, 23b, 23c, 26 and 32:
Amendment of the Price Indication Regulation
In order to achieve a better comprehensibility of the regulations, the Price Indication Ordinance has (PAngV) also been reworded:
