Unfair Commercial Practices Directive, Chapter 2, Article 5, 1. Unfair Commercial Practices Directive, Chapter 2, Article 5, 2. Unfair Commercial Practices Directive, Chapter 2, Article 5, 3.

General terms and conditions do not qualify as legal norms, and can therefore not constitute a violation of § 4 No. 11 (regarding market conduct rules) of the German Unfair Commercial Practices Act. 

The defendant used an invalid clause in its general terms and conditions, which stated: "The company reserves the right to provide customer data to other companies in a legitimate way for the purpose of the dispatch of information and reserves the right to use customer data for its own promotional purposes."

The plaintiff requested a cease-and-desist order for the use of this clause, based on  § 4 No. 11 UWG (the German Unfair Competition Act) in connection with §§ 305 et seq. BGB (German Civil Code).

 



§4 No. 11 UWG can be invoked in case of a violation of a law regulating the market conduct. Therefore, the use of an invalid clause within general terms and condition could constitute a violation according to § 4 No. 11 UWG if general terms and conditions -- or §§ 305 et seq. BGB, which regulate general terms and conditions -- qualify as a legal norm which regulate market conduct.

 

(1) Invalid general terms and conditions are not able to constitute a violation of § 4 No. 11 UWG, because they do not have the required quality of legal norms, and are therefore not market conduct rules in the sense of § 4 No. 11 UWG.

 

(2) §§ 305 BGB also does not constitute a legal norm that regulates market conduct (as its purpose is not the protection of the interests of consumers).   

Are invalid general terms and conditions able to constitute a violation of § 4 No. 11 UWG (the German Unfair Competition Act)?

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The plaintiff's request was denied with regard to the German Unfair Competition Act, but granted on the basis of other German law regulations.