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So-called. warning letters (cf. § 8 Para. 3 No. 2 UWG) are causing the economy a lot of trouble. Smaller companies or start-ups in particular often cannot afford to defend themselves. This overlooks the fact that a warning association is only authorized to pursue alleged infringements of competition law under strict conditions. This follows from Section 8 (3) No. 2 UWG:
“The claims arising from paragraph 1 are due to: (…)
2. associations with legal capacity for the promotion of commercial or independent professional interests, insofar as a significant number of entrepreneurs belong to them who sell goods or services of the same or a related kind on the same market, if they are able, in particular in terms of their personnel, material and financial resources, to actually perform their statutory tasks of pursuing commercial or independent professional interests and insofar as the infringement affects the interests of their members;”
This means:
A warning association may only take action in individual cases if:
it may count among its members a significant number of members who sell
goods or services of the same or a related kind on the same market.
In short: If a warning association wants to take action against an advertising agency, for example, it must generally have a considerable number of advertising agencies (or similar companies) among its members.
Regrettably, case law is quite generous when examining this generally strict requirement. However, this may also be due to the fact that the parties concerned do not question the right of the competition association “attacking” them to file an application or bring an action with the necessary tenacity. From my own experience, I can report on a case in which an internet search regarding alleged members led to astonishing findings:
It turned out that not a single one of the four members of the relevant industry listed could be verified. On the contrary: one of the alleged advertising agencies turned out to be a beauty clinic.
The lesson to be learned from this is that it is always worth questioning the information on the list of members from which every warning association derives its supposed authority to suspect competition law infringements!
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