The German government has declared war on abusive warnings. (Photo: © ostill/123RF.com)
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Don't be afraid of legal warnings! - Special Topics
September 2020
Long planned, now finally passed: The law that stops the so-called warning letter industry. Access to spare parts is also being made easier.
On September 10th, the German Bundestag passed the "Law to Strengthen Fair Competition". In the future, competitors will no longer be able to issue costly cease-and-desist letters and impose contractual penalties on their rivals for minor infringements .
There is also an important new regulation in design law: Visible spare parts may now be offered by anyone. This opens up the market and makes spare parts available to independent workshops.
The law includes various measures to combat the abuse of cease-and-desist letters: It sets higher standards for asserting claims and reduces the financial incentives for issuing such letters – for example, those issuing cease-and-desist letters will no longer be able to demand reimbursement of costs for violations of information and labeling obligations on the internet . The law also provides greater transparency and simplifies the assertion of counterclaims . Another important point: Those issuing cease -and-desist letters will no longer receive reimbursement of expenses if a violation is only minor (see details below).
Good things come to those who wait... : Back in September 2018, then Federal Minister of Justice Katarina Barley presented the draft "Act to Strengthen Fair Competition," and on May 15, 2019, the Cabinet approved the draft. Now, after more than one and a half years, it has been passed by the Bundestag.
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Operations management
Operations management
Contrary to the demands of the skilled trades sector, violations of the General Data Protection Regulation (GDPR) and the Federal Data Protection Act will in future be subject to cease-and-desist letters. This legislative decision is legally controversial. The European Court of Justice will soon decide the matter . The German legislature will be bound by the ruling and may have to amend the law accordingly.
Holger Schwannecke, Secretary General of the German Confederation of Skilled Crafts (ZDH), welcomes the new law: "It is good that, after almost a year of debate, the Bundestag has finally passed legislation to put a stop to the misuse of cease-and-desist letters. At the same time, reputable associations and organizations must be strengthened. It is therefore important that all craft organizations continue to have the legal right to issue cease-and- desist letters and can continue to contribute to the self-regulation of the economy."
Schwannecke emphasizes that the decision regarding the possibility of issuing cease-and-desist letters for data protection violations is incomprehensible . It remains to be hoped that the European Court of Justice will correct the German legislature and ensure legal certainty.
The German Association of Motor Trades and Repairs (ZDK) is also pleased with the new regulations. A ZDK spokesperson stated that this will finally put an end to the abuse of the warning letter system.
The market for visible Spare parts has been newly regulated: With the introduction of the so-called Repair clause A minimum level of competition will be created. This will be done by adapting design law. Under current law, manufacturers can visible elements According to the repair clause, molded spare parts Do NOT spread pesto on this layer! protected by design law. How to get independent workshops and consumers cheaper access to previously difficult to obtain and expensive spare parts.
The new law contains measures to prevent the abuse of cease-and-desist letters . This primarily concerns the following key points:
Warning letters are intended to promote fair competition and not be abused to generate legal fees and contractual penalties. Reducing financial incentives is therefore an effective means of curbing abusive warning letters.
For this purpose, competitors are not entitled to reimbursement of costs for cease-and-desist letters in cases of violations of information and labeling obligations on the internet or violations of data protection law by companies with fewer than 250 employees . In these cases, the amount of any contractual penalty is also limited for a first-time cease-and-desist letter.
Competitive conditions should not be deliberately created to generate revenue through cease-and-desist letters. Therefore, competitors will only be able to assert claims for injunctive relief in the future if they sell or purchase goods or services to a significant extent and not merely occasionally. This excludes online shops with fictitious offers, as well as competitors who are already insolvent and no longer participate in the market.
The business model of disreputable trade associations, founded to generate revenue through cease-and-desist letters, will also be eliminated. Only trade associations that have registered on a list of qualified trade associations after fulfilling certain requirements will be entitled to issue such letters. The Federal Office of Justice regularly reviews whether these trade associations meet the requirements.
Those affected will be able to more easily demonstrate abusive cease-and-desist letters in the future. Legally defined examples will help in this regard: These include the mass distribution of cease-and-desist letters by competitors, as well as cases in which an obviously excessive contractual penalty is demanded or competitors set an unreasonably high value in dispute.
Anyone who receives an unjustified cease-and-desist letter is also entitled to reimbursement of the costs of necessary legal defense. Those issuing such letters must therefore carefully examine the legitimacy of each individual case to avoid financial risks.
In the future, for legal infringements on the internet and in electronic business transactions, the general place of jurisdiction of the defendant, i.e. the party being warned, will apply uniformly.
Law to Strengthen Fair Competition > Read the full text of the draft law here
EU forces manufacturers to supply spare parts. The EU has adopted new regulations for electrical appliances . Producers will now be required to provide spare parts. They are also obligated to release repair information . > Read more here!
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