The Federal Court of Justice overturned the decision and referred it back to the Higher Regional Court for a new hearing (BGH, judgment of 07.03.2024, Ref. I ZR 83/23).
In our Newsletter 03/23, we reported on the limitation period for claims arising from contractual penalties. In a new ruling, the Higher Regional Court of Hamm decided in which cases the debtor of a contractual penalty can defend itself against it. This is particularly the case if the assertion is an abuse of rights because the party issuing the warning has failed to act.
The ruling shows in which special cases it is possible to take action against contractual penalties.
The judgment of the Higher Regional Court of Hamm dated 30.05.2023 (Ref. 4 U 78/22) is based on a warning issued by the IDO (Interessenverband für das Rechts- und Finanzconsulting deutscher Online-Unternehmen e.V.) in 2020.
In response to the warning, the defendant issued a declaration to cease and desist together with an obligation to pay a contractual penalty.
As a result, the promise to cease and desist was breached in mid-2021 and the contractual penalty was forfeited. The IDO sued for this. During the trial, the defendant declared that he was contesting and terminating the declaration of discontinuance and undertaking. This was an abuse of rights.
The association is no longer entered in the list of qualified institutions pursuant to Section 4 UKlaG (Injunctions Act). The plaintiff also issued 3,520 warnings in 2020. As a result, 1,325 cease-and-desist declarations were issued. Of the remaining 2,195 warnings, only 528 cases were pursued in court. Around half of the warnings thus remained without consequences. The situation was similar in previous years.
The OLG Hamm states the following in this regard:
The fact that the plaintiff is not entered in the list of qualified institutions does not already lead to abusive practices in this case. Trade associations that issue warnings for unfair competition infringements have only had to be entered in this list since December 1, 2021. Otherwise the warning is unjustified. When the contractual penalty was agreed in 2020, the obligation to register did not exist, and the law did not yet apply at the time the contractual penalty was asserted in court.
However, the debtor of a contractual penalty agreement can terminate it if the creditor is no longer entitled to the injunctive relief due to a change in the law that has occurred in the meantime. Even if the contractual penalty was not terminated in good time, the debtor can defend itself by claiming that the payment claims are an abuse of rights.
The assertion of the contractual penalty was an abuse of rights due to the large number of warnings, most of which had no consequences if the debtor did not submit to a cease-and-desist declaration.
It can therefore be concluded that the warnings only served to incur legal fees and contractual penalties.
In contrast, the number of warnings alone does not constitute an abuse of rights. In accordance with the case law of the BGH, further circumstances are required for this.
The Higher Regional Court of Cologne (judgment of 21.06.2023 – 6 U 147/22) took the same view. It also stated that the fact that the association’s own members were spared and the distribution of income to only six members of the association were strong indications of an abuse of rights.
The OLG Brandenburg (judgment of 16.05.2023 – 6 U 47/21) takes a completely different line. Neither the number of warnings that were not followed up nor the selective choice of those warned led to an abuse of rights.
In the decision of the OLG Hamm discussed above, an appeal to the BGH was permitted and also lodged. It remains to be seen whether the predominantly pursued line of the higher courts will hold before the BGH.
Conclusion
Contractual penalty agreements can be terminated if, for example, the claim for injunctive relief is not met. could no longer be asserted due to changes in the law.
Even without termination, debtors of such an agreement can defend themselves against payment claims.
If you have agreed a contractual penalty with the IDO in the past and are now being sued, the chances of a successful defense are therefore good.
