Competition law in Germany is more than antitrust law. Due to European and national legislation Germany cheers enterprises with one of the most comprehensive and complex laws in terms of b2c practices and consumer protection.
Just to name a few, any and all marketing strategy has to bear in mind not only the Act Against Unfair Competition (“UWG”) but as well the rules for General Terms and Conditions as stated in Sec. 307 – 309 of German Civil Code (“BGB”). Accordingly, clauses of General Terms and Conditions are ineffective whenever they place a contractual partner at a disadvantage to an unreasonable extent and are in bad faith. These prohibitions do not only apply when consumers are affected. In addressing the issue of whether an unreasonable disadvantage is given, German jurisdiction orients itself, however, by the “guidance function” of the individual prohibitions of such clauses. Therefore, the stipulations of Sections 308 and 309 must be taken into account in b2b practice, even though indirectly.
Doing business in Germany without considering these rules would be hazardous and could result in devastating consequences. Even the use of an ineffective clause in General Terms and Conditions is to be regarded as undue influence on the economic behaviour of consumers by breach of law and therefore subject to cease and desist letters by competitors and antitrust authorities.
The laws of the EU Member States concerning unfair b2c practices used to be highly diverse which led to uncertainty as to as to which national rules apply and appreciable distortions of competition and obstacles to the smooth functioning of the internal market. Now the EU Directive 2005/29 concerning unfair b2c practises shall approximate the laws of the Member States on unfair commercial conduct. The EU legislation modelled this directive on German laws and jurisdiction. Court proceedings in Germany are, in comparison with other Member States, quick and low priced. Many companies take advantage of these facts by testing their marketing strategy in Germany in a fast and very cost-effective way. Our team will assist you in such test cases as well as in all other legal issues related to fair trade and consumer protection.
If it comes to antitrust cases we advice national and international companies of all types when structuring their distribution. We are there to set up your exclusive or the selective distribution system, considering all aspects of European competition law, such as the new Commission Regulation No 330/2010 on vertical agreements. Furthermore, we check the compliance of your existing channels of distribution and advertisement campaigns with the legal regulations. In addition we provide and compose the contracts including the terms and conditions, conditions of delivery etc. If problems should arise with the competitors or the cartel authorities we handle this matter for our clients.
Dr. Marcus Dittmann
Dr. Kay Wagner