In its decision of 16 February 2021, the Higher Regional Court of Dusseldorf (ref.: 20 W 11/21) stated in an obiter dictum when the exception from the flying jurisdiction (local jurisdiction) applies according to the provision of Sec. 14 (2) 3rd sentence no. 1 UWG (unfair competition act), which has been in force since 2 December 2020.
With the latest amendment to the UWG (Act to Strengthen Fair Competition), exceptions to the flying jurisdiction were included in Sec. 14 (2) 3rd sentence no. 1 UWG in order to counteract the abuse of warning letters exclusively for the purpose of obtaining fees. For this purpose, the area of the internet, which is particularly susceptible to abuse, was excluded from the flying jurisdiction. Pursuant to Sec. 14 (2) 3rd sentence no. 1 UWG, the jurisdiction of the tort (flying jurisdiction) does not apply to legal disputes for infringements in electronic commerce or telemedia.
There is a lack of clarity in particular as to whether only cases of specific information and labelling obligations in online trade or on websites are excluded from the flying jurisdiction. Even if this is denied, the question remains whether cases with online as well as offline references are covered by the exclusion. Overall, the scope of the exclusion is therefore not yet sufficiently clear for practice, so that judicial decisions are to be welcomed here.
Decision Regional Court of Dusseldorf
The decision was based on a case in which the plaintiff had challenged several independent anti-competitive advertising statements with a request for a preliminary injunction. The advertising statements relevant to the question of local jurisdiction took place exclusively on the internet. The Regional Court of Dusseldorf had assumed local jurisdiction on the basis of the "flying jurisdiction" and thus denied the existence of an exception under the new Sec. 14 (2) 3rd sentence no. 1 UWG, although the defendant had its registered place in Koblenz and the advertising statements took place exclusively on the internet. According to the decision of the Regional Court of Dusseldorf, the exception under Sec. 14 (2) 3rd sentence no. 1 UWG only covered infringements of internet-specific labelling regulations.
Decision Higher Regional Court of Dusseldorf
The Higher Regional Court of Dusseldorf has now ruled that the exception under Sec. 14 (2) 3rd sentence no. 1 UWG does not exclusively cover internet-specific labelling regulations, but applies to any infringement of unfair competition law on the internet. In such cases, plaintiffs would have to resort to the place of jurisdiction of the defendant's registered place. The Higher Regional Court of Dusseldorf based its decision in particular on the fact that the legislator had not formulated the exception under Sec. 14 (2) 3rd sentence no. 1 UWG in a restrictive manner, although it had expressly included a corresponding restriction elsewhere in Sec. 13 (4) No. 1 UWG to committed infringements of statutory information and labelling regulations. Accordingly, the restrictive interpretation of the Regional Court of Dusseldorf would even go beyond the restrictions of Sec. 13 (4) no. 1 UWG. According to the explanatory memorandum to the Act, the statutory information and labelling obligations cover all infringements that occur in the field of online trade or on websites. A teleological reduction is also not an option because the legislator was aware of the possibility to restrict Sec. 14 (2) 3rd sentence no. 1 UWG accordingly, but did not make this restriction.
However, the Higher Regional Court of Dusseldorf left open the case when the objectionable advertising does not take place purely virtually. In particular, cases are conceivable in which an advertising campaign takes place online as well as offline, so that the advertising statements are at least also made on the internet. There are good reasons for not applying the exception in these cases. The flying jurisdiction should apply as soon as statements under competition law have not appeared exclusively online or real products violate norms of competition law. In such a case, the parties should be able to choose the court according to the infringement committed and thus benefit from the expertise of courts experienced in competition law.
This decision therefore gives practitioners an initial indication of the cases in which the flying jurisdiction will apply in the future. However, this does not eliminate the uncertainty caused by the reform in practice. This is especially true since other higher regional courts have not yet ruled on this issue and that the Federal Supreme Court has not yet made a decision. In cases of doubt, practitioners still have to weigh up whether to file an request for a preliminary injunction either with the court with local jurisdiction at the defendant's registered place or with the supposedly more specialised court for competition disputes. It would therefore be welcome if the case law provides clarity in a timely manner as to the cases in which the flying jurisdiction continues to apply in competition disputes.