Good news first: on 10 September 2020, the law against the abuse of warning letters was passed by the Bundestag, because "warning letters should be issued in the interest of legally neutral competition or the enforcement of consumer law and should not be used to generate reimbursement of expenses and contractual penalties", according to the justification of former Federal Minister of Justice Katarina Barley.
With the help of the new law, higher requirements for the authority to assert claims, the reduction of financial incentives for warning letters, more transparency and simplified possibilities for asserting counterclaims are intended to bring about significantly improved protection against abusive warning letters, with the goal of halving the abuse of warning letters. From this point of view, it is a great thing that the Bundestag now finally recognises the abuse of warning letters for profit as a fact in need of regulation and wants to combat it - in theory.
In practice, however, it is certainly something else, because even with capped contractual penalties of 1,000.00 euros, it will still not be possible to deny that the classic dissuaders have a predominantly financial interest. Within the now legally clearly outlined framework, they may therefore continue to issue unrestrained and mass cease-and-desist notices for violations of information and labelling obligations as well as DSGVO violations at small companies with up to 250 employees. Unfortunately, the requirements for the qualification of associations as "authorised to issue warnings" are so broadly defined in the law that the real black sheep will continue to fall through the cracks in the future. Although there will be a control by the Federal Office of Justice (BfJ), it will only be based on the associations' self-disclosure of their warning behaviour - other control possibilities, such as the introduction of an online register for warning letters, have not been implemented in the new law.
This brings us to the topic of this article: Current warning letters
Unfortunately, I still experience almost daily that warning letters dubious law firms and warning associations bring many of their colleagues to their knees because they cannot afford the financial and human resources for a court case and thus we are often only left with the option of entering into tough and gruelling negotiations with the warning agents in order to at least reduce the costs and modify the demanded cease-and-desist declaration. Because once signed, the cease-and-desist declaration can become an existence-threatening boomerang for the online shop operator - for life. From now on, the online business life of traders will be determined by the fact that this does not happen.
Currently, the Wettbewerbszentrale (Zentrale zur Bekämpfung unlauteren Wettbewerbs Frankfurt am Main e.V.), the VSV (Verbraucherschutzverein gegen unlauteren Wettbewerb e.V.) and the IDO (Interessenverband für das Rechts- und Finanzconsulting deutscher Online- Unternehmen e.V.) are keeping us busy. These not only continue to issue warnings with the same regularity, but also claim contractual penalties. As we know, the (often unfortunately justified) warning letters are not the problem, but the (financial) problem is the contractual penalties, often costing several thousand euros, which are claimed for every new mistake based on the previously submitted cease-and-desist declaration.
So it should go without saying that you should use perfectly worded GTCs, always keep them and your other information obligations up to date and please, please do not use that little word "wholesome". If not - ask me for a non-binding offer! I will be happy to advise you on all questions concerning a legally compliant online presence!
To the current warning traps in detail:
- insufficient or missing information duties, e.g.
- (not) easily accessible and clickable link to the ODR platform The purpose of the regulation is to inform the consumer of the existence of the dispute resolution platform. Consumers should be able to use this platform if they have problems with an online trader. Therefore, if one is an entrepreneur who enters into online sales contracts, one must provide the clickable link in the imprint - i.e. also as an Amazon Marketplace or eBay merchant (cf. also OLG Koblenz - decision of 25.01.2017, 9 W 426/16)!
- Other missing information in the imprint Original text warning letter: "Contrary to the provision of § 5 Telemediengesetz (TMG), you do not provide all mandatory information. The details of the commercial register court for your (xy) GmbH are missing." So don't forget to check your imprint - including the legal form of your company (GmbH, GbR,...) as well as the corresponding entry in the commercial register! These must be listed!
- Missing information on saving contract text in your general terms and conditions Although online shop operators are not obliged to store the text of the contract after it has been concluded, they must inform their customers whether it is stored. Incidentally, this obligation also applies to sales via sales platforms! I therefore strongly recommend inserting the following clause, or something similar, into your GTC: "The contract text is not stored by the seller and cannot be retrieved after the order process has been completed. However, the customer can print out the order data immediately before submitting the order by using the print function of his browser and will receive an e-mail after placing the order in which the customer's order is listed again."
- (old) Right of withdrawal Before placing the order, your customers must be informed in a clear and comprehensible manner about the conditions, deadlines and procedure on how to exercise their right of withdrawal, §§ 312d para. 1, 312g para. 1 BGB in conjunction with. Art. 246a, § 1 para. 2 and § 4 para. 3 EGBGB. Since 13.06.2014 obligation to always provide the revocation instruction with model revocation form!
In addition, remember to include a current cancellation policy and, if applicable, the model cancellation form in the confirmation email that you must send to the customer within 24 hours in response to their purchase offer. In this way you ensure that your customers have the opportunity - if necessary before the goods are dispatched, but already at the time of the conclusion of the contract - to take note of their 14-day right of cancellation in text form and to cancel the order if necessary. Next, the legislator has not provided for the indication of a telephone number in the cancellation policy; however, this means conversely that the consumer can also declare the cancellation by telephone, so that since the reform of the cancellation policy on 13.06.2014, a telephone number must also be indicated in the cancellation policy!
- No health claims In fact, there are still colleagues/staff who advertise with "bekömmlich" in connection with drinks with an alcohol content of more than 1.2 percent by volume! According to the so-called Health Claims VO (HCVO), this is strictly regulated by the EU and prohibited in Art. 4 para. 3 p.1 HCVO. The best thing to do is to do what the cautioners do and use the advanced search function of google(https://www.google.com/advanced_search) to scan your own shop for disastrous terms such as "sulphites" (which are present in almost every wine and must be listed!) and "wholesome" and similar health-related information (not to be used in connection with beer or wine!).
- Missing basic price information Any person who offers goods to final consumers on a commercial or business basis or regularly in any other manner in prepackages, open packages or as sales units without wrapping according to weight, volume, length or surface area must indicate not only the total price but also the price per unit of quantity including VAT and other price components (basic price) in the immediate vicinity of the total price, section 2 para. 1 sentence 2 PAngV.
- Newsletter dispatch without consent The GDPR stipulates, among other things, that when personal data are collected that are not absolutely necessary for the performance of a contract within the meaning of Art. 6 para. 1 GDPR, the data subject must give his/her consent to the processing of the data concerning him/her for one or more specific purposes, Art. 7 para. 2 no. 3 UWG (Unfair Competition Act).
The consent of the person concerned requires a corresponding declaration of consent - this may neither be implied nor assumed by a box that has already been ticked. Rather, the person must take action themselves, for example by entering their email address in a corresponding input field.
- No registration with the Central Packaging Authority, Section 9 (1) of the Packaging Act. Since the Packaging Act (VerpackG) came into force on 01.01.2019, you must register with a dual system and pay a corresponding fee. This fee is mainly based on the mass of the packaging. For this purpose, you must first register with the new "central body" in a public register.
- Lack of organic certification Since 2009, online traders have been obliged to be certified by a suitable body when selling organic products. If you also have organic products in your assortment, you would have to make sure to get certified as well!
Finally, I would like to remind you that even the professional warning agents make mistakes not so seldom - obviously, those responsible sometimes lose track of those who are being warned. In concrete terms, this means that sometimes mistakes are criticised that the online trader did not make at all. I did not receive a reply to a letter to this effect...
By the way, as a premium member of wein.plus you can also make it easy for yourself and subscribe to my monthly newsletter - especially for wine merchants and winegrowers - for only 15.00 euros. In this newsletter, I will inform you in good time about new legal requirements and changes in case law and give you valuable tips and formulation hints for the implementation in your online shop.
Greetings
Your lawyer Hans-Peter Kröger.
At the Fronhof 4
D-53913 Swisttal-Heimerzheim
Phone: 02254/830 100
Fax: 02254/830 880
info@rechtsanwalt-kroeger.de
www.kanzlei-kröger.de
RA Kröger offers Business Premium members of wein.plus a free initial consultation after receiving an warning letter: To the initial consultation
