Jurisprudence related to German competition law (UWG)

Here is a detailed explanation of recent jurisprudence related to the updates in German competition law (UWG), including case references, decision names, and applicable legal norms, presented in English:

1. German Federal Court of Justice (BGH) – Post-Contractual Non-Compete Clauses

• Case Number: II ZR 99/22
• Decision Name: Post-Contractual Non-Compete Obligations for Managing Directors
• Legal Norms: Section 74 (1) German Commercial Code (Handelsgesetzbuch – HGB)
• Summary:
  The BGH ruled that post-contractual non-compete clauses for managing directors are only valid if they are reasonable in terms of duration, geographic scope, and compensation. Overly restrictive clauses that unduly limit professional activities are invalid.

2. European Court of Justice (ECJ) – Abmahnung for GDPR Violations

• Case Number: C-21/23
• Decision Name: Competitor Enforcement of GDPR Violations
• Legal Norms: Article 80(2) General Data Protection Regulation (GDPR)
• Summary:
  The ECJ clarified that competitors are permitted to issue cease-and-desist warnings (Abmahnungen) and file legal actions against companies for violations of the GDPR. This strengthens the enforcement of data protection regulations within competitive markets.

3. German Federal Court of Justice (BGH) – State Neutrality in the Press

• Case Number: I ZR 193/23
• Decision Name: Prohibition of Free Local Newspapers by Public Authorities
• Legal Norms: Article 5 (1) Basic Law (Grundgesetz – GG), Section 3a UWG
• Summary:
  The BGH ruled that local governments cannot publish free newspapers or circulars that compete with private media outlets, as it violates the principle of state neutrality in the press and distorts competition.

4. European Court of Justice (ECJ) – Transparency in Price Reductions

• Case Number: C-473/22
• Decision Name: Omnibus Directive and Price Reduction Announcements
• Legal Norms: Directive (EU) 2019/2161 (Omnibus Directive), Section 5a UWG
• Summary:
  The ECJ determined that businesses must transparently display the reference price when announcing price reductions. The reference price should be the lowest price applied in the 30 days preceding the discount. This ensures consumer trust and prevents deceptive practices.

5. German Federal Court of Justice (BGH) – Environmental Claims in Advertising

• Case Number: I ZR 228/22
• Decision Name: Greenwashing in Environmental Advertising
• Legal Norms: Section 5 UWG (Misleading Commercial Practices)
• Summary:
  The BGH ruled that environmental claims in advertising must be substantiated with clear and scientific evidence. Generic or vague claims, such as “climate-neutral,” without proper justification are misleading under competition law.

6. German Federal Administrative Court (BVerwG) – Data Protection Violations and Competition Law

• Case Number: 6 C 18/23
• Decision Name: Data Protection Violations as Unfair Competition
• Legal Norms: Article 80 GDPR, Section 3a UWG
• Summary:
  The BVerwG decided that GDPR violations can constitute an act of unfair competition under Section 3a UWG. Competitors can use this as a basis for legal actions, reinforcing the intersection between data protection and competition law.

7. Higher Regional Court (OLG) Stuttgart – Influencer Marketing Transparency

• Case Number: 5 U 111/23
• Decision Name: Influencer Disclosures in Social Media Advertising
• Legal Norms: Section 6 UWG (Comparative Advertising), Section 5 UWG
• Summary:
  The court ruled that influencers must clearly label promotional content as advertisements, even if it includes personal recommendations or unpaid collaborations. Transparency is mandatory to avoid misleading consumers.

8. German Federal Court of Justice (BGH) – Algorithmic Pricing and Aggressive Practices

• Case Number: I ZR 45/23
• Decision Name: Exploitative Pricing Strategies via Algorithms
• Legal Norms: Section 4a UWG (Aggressive Practices)
• Summary:
  The BGH held that algorithmic pricing exploiting consumer vulnerabilities, such as financial distress, constitutes an aggressive commercial practice. This decision highlights the need for ethical AI use in pricing strategies.

9. Higher Regional Court (OLG) Hamburg – Misleading Online Reviews

• Case Number: 3 U 233/23
• Decision Name: Manipulation of Online Reviews
• Legal Norms: Section 5 UWG (Misleading Practices)
• Summary:
  The court emphasized that platforms must verify the authenticity of reviews if they claim to display genuine customer feedback. Failure to do so misleads consumers and breaches competition law.

10. European Court of Justice (ECJ) – Black Friday Price Campaigns

• Case Number: C-302/22
• Decision Name: Transparency in Promotional Campaigns
• Legal Norms: Directive (EU) 2019/2161, Section 5a UWG
• Summary:
  The ECJ ruled that promotional campaigns like “Black Friday” must clearly outline the terms, duration, and criteria for discounts. Misleading representations of discounts or hidden conditions violate consumer protection laws.

Role of Advertising Lawyers (Werberechtler):

1. Compliance Audits: Ensuring marketing campaigns comply with the latest transparency, environmental, and pricing regulations.
2. Risk Management: Reviewing data protection practices in advertising to prevent GDPR violations linked to unfair competition.
3. Litigation Support: Representing clients in cases involving misleading advertising or competitive disputes.
4. Policy Implementation: Advising on AI-driven pricing models to ensure they align with ethical and legal standards.
5. Training: Educating marketing teams about legal obligations in advertising and consumer protection.

These decisions demonstrate the evolving relationship between competition law, consumer rights, and digital innovation, requiring companies to stay vigilant about legal developments.