Germany

Status

Adopted

Explanatory note re status

The legislative process for the implementation of the Omnibus Directive / Better Enforcement Directive into German law has been completed by introducing (trough two acts and one ordinance, see next column) amendments to the following laws:

• German Civil Code ("Bürgerliche Gesetzbuch, BGB),
• Introductory Act to the German Civil Code (“Einführungsgesetz zum Bürgerlichen Gesetzbuche", EGBGB)

Price Indication Ordinance ("Preisangabenverordnung", PAngV)

• Act against Unfair Competition ("Gesetz gegen den unlauteren Wettbewerb", UWG) and
• Trade regulations ("Gewerbeordnung", GewO).

As required by the Omnibus Directive, the new rules have come into force on 28 May 2022.

Implementation Act

Act amending the Civil Code and the Introductory Act to the Civil Code in implementation of the EU Directive on better enforcement and modernisation of Union consumer protection rules and repealing the Regulation transferring responsibility for the implementation of Regulation (EC) No 2006/2004 to the Federal Ministry of Justice and Consumer Protection („Gesetz zur Änderung des Bürgerlichen Gesetzbuchs und des Einführungsgesetzes zum Bürgerlichen Gesetzbuche in Umsetzung der EU-Richtlinie zur besseren Durchsetzung und Modernisierung der Verbraucherschutzvorschriften der Union und zur Aufhebung der Verordnung zur Übertragung der Zuständigkeit für die Durchführung der Verordnung (EG) Nr. 2006/2004 auf das Bundesministerium der Justiz und für Verbraucherschutz“) dated 17 August 2021.

Act to strengthen consumer protection in competition and trade law („Gesetz zur Stärkung des Verbraucherschutzes im Wettbewerbs- und Gewerberecht“) dated 17 August 2021.

Ordinance amending the Price Indication Ordinance ("Veordnung zur Novellierung der Preisangabenverordnung") dated 23 November 2023.

(Envisaged) Implementation Date

As required by the Omnibus Directive, the new rules have entered into force on 28 May 2022.

Approach to implementation

Amendments to existing laws (see "Implementation Act" above).

Next steps

N/A

A. Amendment to Unfair Contract Terms Directive (Directive 93/13/EEC)

What penalties can be imposed for infringements of consumer rights related to consumer contracts? 
Has the option to limit the penalties been implemented? 

"Widespread infringements" and "infringements with a Union dimension" of national law adopted pursuant to the Unfair Contract Terms Directive or the Consumer Rights Directive are now subject to fines.

For a "widespread infringement", a cross-border act must violate Union law that protects the collective interests of consumers in at least three Member States. This is the case, for example, if a misleading advertisement is available in several Member States or if the operator of an online shop allows delivery to consumers in other Member States. An infringement has an "Union dimension" if at least two thirds of the Member States and two thirds of the population of the EU are affected.

Under the new Art. 246e, Sec. 1 EGBGB, fines can be imposed for intentional or negligent widespread infringements and infringements with a Union dimension of inter alia:

• the use of general terms and conditions that are invalid under Sec. 309 BGB;
• insufficient labelling of an order button in e-commerce;
• violation of the trader’s obligation not to assert a claim against the consumer when sending unsolicited goods;
• violations of various information obligations; and
• violations of obligations to return goods after withdrawal of the contract.

Art. 246e, Sec. 2 EGBGB stipulates a fine with a maximum limit of EUR 50,000.00. A higher fine may be imposed if a company has an annual turnover of more than EUR 1,250,000 in a Member State of the European Union affected by the infringement in the business year preceding the decision by the authorities; the fine may not exceed 4% of the annual turnover. If there are no indications of an estimate of the annual turnover, the maximum fine is EUR 2,000,000.
Fines may only be applied through the coordinated action mechanism established by Regulation (EU) 2017/2394.
Germany has refrained from acting on the option given by the Directive to set higher maximum fines than the fines mentioned above.

Germany has made use of the possibility provided for in the Omnibus Directive to limit penalties to cases where the contractual terms are expressly defined as unfair in all circumstances in national law or where a seller or supplier continues to use contractual terms that have been found to be unfair in a final decision in a class action brought by a consumer association.

B. Amendments to Price Indications Directive (98/6/EC)

I. What obligations must traders now comply with when advertising price reductions to consumers?

When announcing a price reduction, traders must now indicate the lowest price of the product applied to consumer sales within the 30 days prior to applying the price reduction.
This is stipulated in Sec. 11 PAngV.

This does not apply to:

• goods which are liable to deteriorate or expire rapidly (in particular food);
• progressive, uninterrupted price reductions; and
• goods that have been on sale for less than 30 days (in which case, the lowest price since the start of the sale must be indicated).

The above exceptions were left to the discretion of the Member States; Germany has made use of them.

Please note: The above requirements only apply to products (i.e., movable goods). Although the PAngV also contains price indication requirements for services, services are out of scope of Sec. 11 PAngV.

II. What penalties can now be imposed for infringements of consumer rights related to the indication of the prices of products offered to consumers? What criteria have been established for the imposition of the fines?

Violations of the provisions named in the new Sec. 20 PAngV are subject to fines of up to EUR 25,000.00.

The catalogue of penalised violations has been extended to include the violation of the new obligation with regard to the announcement of price reductions. Otherwise, the violations subject to fines remain the same as under the old PAngV.

The indicative criteria for the imposition of fines are set out in Sec. 17, para. 3 German Administrative Offences Act ("Gesetz gegen Ordnungswidrigkeiten, OwiG"). This provision did not have to be changed as a result of the Omnibus Directive, as the possible assessment criteria mentioned in the Omnibus Directive were already included in the provision before.

The basis for imposing fines under Sec. 17 para. 3 OwiG is the significance of the administrative offence and the accusation against the offender. The economic circumstances of the offender are also taken into consideration. However, minor administrative offences are not usually taken into account.

C. Amendments to Unfair Commercial Practices Directive (2005/29/EC)

I. What are the implications of "digital services and content" now being considered "products" under the Unfair Commercial Practices Directive?

With respect to UWG, as the term "goods and services" had been interpreted so broadly in the past, it already covered digital services and content.

The amendment of Sec. 2, para. 1, No. 1 UWG now incorporates the terms into the definition of "commercial practices". As such, the amendment only serves to clarify the existing position; there are no other implications of the amendment.

II. What changes for traders who offer goods and services of different traders or consumers on their website that are displayed in a certain order when searched by a consumer ("rankings")?

Traders who operate such a search function must now provide clear information about the main parameters used to rank products in online searches and their relative importance (Sec. 5b para. 2 UWG).

This does not apply to operators of sole online search engines.

Non-compliance by the trader of the above obligation constitutes misleading by omission according to Sec. 5a UWG.

The trader is also prohibited from providing search results without clearly disclosing any paid advertisement or payment specifically for achieving higher ranking of products within the search results (No. 11a of the Annex to Sec. 3 para. 3 UWG).

III. What are the transparency obligations that traders who operate online marketplaces where other traders and consumers can sell goods and services must comply with now?

Traders who provide online marketplaces are obliged to inform consumers whether an item is purchased from another consumer or a different trader. In the case of a transaction with other consumers, the consumer will not benefit from EU consumer protection rules (Sec. 5b para. 1 No. 6 UWG)

If the trader does not comply with the above obligation, this constitutes misleading by omission according to Sec. 5a UWG.

Additional online market specific obligations were implemented as part of the Consumer Rights Directive (see section IV).

IV. Are there any new provisions for consumer protection against unfair practices in doorstep selling and commercial excursions?

Yes, Germany has made use of the option to introduce new regulations with respect to commercial excursions (i.e. excursions organised by a trader with the aim or effect of promoting or selling products to consumers).

The new Sec. 56a GewO tightens and expands the previously existing notification obligations for organisers of commercial excursions who set up a fixed point of sale as part of an excursion (so-called 'travelling camps').

Violations of these regulations are punishable by a fine (Sec. 145 para. 3 GewO). The maximum fine will be increased from EUR 1,000 to EUR 10,000.

V. What transparency obligations must traders who publish consumer reviews now comply with?

Traders are obliged to inform the consumer about whether and how they ensure that reviews originate from consumers who are actual users/buyers (Sec. 5b para. 3 UWG).

This only covers traders who themselves make consumer reviews accessible. If traders merely refer via a link to consumer reviews published by third parties about the goods or services offered by them, the obligation does not apply.

It is forbidden for traders:

• to state that reviews are submitted by actual users/buyers without taking reasonable and proportionate steps to check their authenticity (No. 23b of the Annex to Sec. 3 para. 3 UWG); and
• to submit or commission another person to submit false reviews or endorsements, or misrepresent consumer reviews or social endorsements, in order to promote products (No. 23c of the Annex to Sec. 3 para. 3 UWG).

VI. What must traders who market a good, in one Member State, as being identical to a good marketed in other Member States, while the goods have a different composition ("dual quality"), consider now?

The new unfair commercial practice provision of Section 5 para. 3 No. 2 UWG provides that marketing a good as identical to a good offered in other EU Member States is unlawful if the goods differ substantially ("dual quality"). For the marketing to be lawful, such a difference must either be justified by legitimate and objective factors or be clearly recognisable to the consumer.

VII. Under what conditions and with what effects are legal remedies now available to consumers who have been harmed by unfair commercial practices?

Pursuant to Sec. 9 para. 2 UWG, the consumer may claim damages for unfair commercial practices committed by the trader intentionally or negligently. It is a prerequisite that Sec. 3 UWG is violated (which includes all unfair commercial practices) resulting in a business decision by the consumer which he/she would not otherwise have made.

Claims for damages due to unfair commercial practices already existed before the amendment of the UWG on the basis of civil law, but the amendment closes some loopholes for which no civil law remedies existed.

The following unfair commercial practices are excluded from a damages claim:

• Violations of regulations outside the UWG which also serve to regulate the conduct of market participants (Sec. 3a UWG);
• Violations of Sec. 4 UWG (Competitor Protection);
• Violations of Sec. 6 UWG (Comparative Advertising); and
• Violations of Annex I to Sec. 3 para. 3 No. 32 (Request for payment on the day of contract conclusion as part of unsolicited door step selling visits).

The claim is subject to a limitation period of one year.

Please note: The EU has also adopted the Collective Redress Directive (2020/1828/EC) which introduces collective redress mechanisms for consumers related to (inter alia) claims for damages for unfair commercial practices and which must be implemented by 25 June 2023.

VIII. What penalties can be imposed for infringements of consumer rights by unfair commercial practices?

Widespread infringements and infringements with a Union dimension (as previously defined in section A) of national law adopted pursuant to the Unfair Commercial Pracftices Directive are now subject to fines.

Under Sec. 19 UWG, fines for intentional or negligent breaches of Sec. 5c UWG can be imposed. Sec. 5c UWG deals with widespread infringements and infringements with a Union dimension of:

• Sec. 3 para. 3 in conjunction with No. 1 to 31 of its Annex (blacklisted unfair commercial practices);
• Sec. 4a para.1 (aggressive commercial practices);
• Sec. 5 (misleading commercial practices);
• Sec. 5a (misleading commercial practices by omission); and
• continued unfair commercial practices despite an executive order according to Art. 3 No. 6 of Regulation (EU) 2017/2394 and/or a final decision of a court.

The fines stipulated under Sec. 19 para. 2 UWG correspond to those laid down in Art. 246e Sec. 2 EGBGB for infringements of consumer rights related to consumer contracts (see section A).

Germany has refrained from acting on the option given by the Directive to set higher maximum fines.

D. Amendments to Consumer Rights Directive (2011/83/EC)

I. What are the implications of "goods with digital elements" and "digital services and content" now falling within the scope of the Consumer Rights Directive? Must traders consider any new information requirements?

Goods with digital elements, as well as digital services and digital services, are now subject to the same rules as all other goods and services covered by the Consumer Rights Directive.

However, for goods with digital elements and digital content and digital services, additional information requirements for traders apply which have been implemented in Art. 246 Sec. 1 No. 7 and 8 and Art. 246a Sec. 1 para. 1 No. 17 and 18 EGBGB.

These requirements stipulate that before conclusion of the contract, the trader must inform the consumer about the following:

• where applicable, the functionality of the goods with digital elements or of the digital products, including applicable technical protection measures; and
• where applicable, and where material, the compatibility and interoperability of the goods with digital elements or digital products, to the extent that this information is known or ought to be known by the trader.

II. Do the national provisions that transpose the rules under the Consumer Rights Directive also apply when consumers "pay" for the provision of digital content or services with personal data?

Yes, the Consumer Rights Directive (like the Digital Content Directive) now also applies to contracts for the provision of digital services for which the consumer does not pay a price but provides personal data to the trader.

This also applies to contracts for the provision of personal data which is not stored on a tangible medium for which the consumer provides personal data in return.

Provision by the consumer also occurs when the trader sets cookies or collects metadata such as data on the consumer's device or browsing history, provided that the acts in question are to be regarded as the conclusion of a contract.

However, the Consumer Rights Directive does not apply if the trader processes the personal data provided by the consumer for no other purposes than:

• fulfilling its contractual obligation by supplying the digital content; or
• for complying with legal requirements to which the trader is subject.

In Germany there was no need to transpose the above rules into national law as a provision to this effect was already introduced in Sec. 312 para. 1a BGB as part of the implementation of the Digital Content and Digital Services Directive. This provision has been in force since 1 January 2022.

III. What new information obligations and formal requirements must traders comply with for distance or off premise contracts with consumers?

Traders must now always provide their telephone number to the consumer when concluding a distance or off-premise contract. The obligation to indicate the fax number, on the other hand, is no longer applicable. In addition to the telephone number and the e-mail address, information about other means of communication that enable consumers to store correspondence with the trader on a durable medium must also be provided now (Art. 246a Sec. 1 para. 1 No. 3 BGB).

Art. 246a Sec. 1 No. 6 BGB sets out a new information obligation: traders must inform consumers if they have personalised the price of the specific product/service on the basis of automated decision-making. The information must be provided in a clear and comprehensible manner before the conclusion of the contract with the consumer.

Where there is only limited space or time to display the information, the main characteristics of the goods or services, the identity of the trader, the total price, the right of withdrawal, the duration of the contract and the conditions of termination of indeterminate contracts must be indicated (Art. 246 Sec. 3 para. 1 No. 4 EGBGB). However, the trader must still provide the other mandatory information, including the model withdrawal form, in an appropriate manner.

The model withdrawal instructions contained in the Annexes to the EGBGB were also amended. In the model withdrawal instructions for distance and off premise contracts, the reference to contact or withdrawal by fax is no longer included. Likewise, there is no longer the obligation to give a fax number in the model withdrawal form. On the other hand, it is now mandatory to indicate the telephone number in the withdrawal instructions, whereas previously this has only been required if a telephone number was in fact available.

IV. Which additional specific information requirements apply for contracts concluded on online marketplaces?

According to the amended Sec. 312k para. 1 BGB, an operator of an online marketplace must follow the information obligations laid out in Art. 246d EGBGB.

Thereafter, the operator must provide information about:

• the main parameters for determining the ranking presented to the user;
• whether the third party offering their goods, services or digital product is a trader or not;
• the non-applicability of consumer protection law if the third party offering the goods, services or digital product is not a trader; and
• where applicable, how the obligations related to the contract are shared between the third party offering the goods, services or digital product and the operator of the online marketplace.

In addition, Germany made use of the possibility provided in the Omnibus Directive to oblige the operator of an online marketplace to provide information on further circumstances that are of material importance for the decision of a consumer to conclude a contract on an online marketplace.

Accordingly, an operator must also provide information about:

• economic interconnections between the operator and third parties who offer their goods and services on the online marketplace;
• the providers that were taken into account when creating a comparison on a comparison portal (so-called positive list of providers); and
• the price for the purchase of an admission ticket that the organiser of the event has set, if the operator of the online marketplace resells the ticket.

V. In case of a withdrawal by the consumer: What must traders consider with regard to the use of content (other than personal data) created or provided by the consumer when using digital products provided by the trader?

Sec. 327p para. 2 BGB, stipulates that the trader may not continue to use content (that is not personal data) created or provided by a consumer when using the digital content or services (digital products) after the termination of the contract.

Sec. 327p has been in force since 1 January 2022 as a result of the implementation of Digital Content and Digital Services Directive.
Implementation of the Omnibus Directive, Sec. 357 para. 8 BGB now clarifies that Sec. 327p is also applicable in case of a withdrawal by the consumer. However, this is only a clarification; this already existed.

Sec. 327p para. 2 BGB does not apply if the exceptions in para. 3 no. 1-4 are applicable:

• no. 1: the content in question has no use outside the context of the digital product;
• no. 2: the content results exclusively from the consumer's use of the digital product;
• no. 3: the content has been aggregated by the trader with other data and cannot be disaggregated or can only be disaggregated with disproportionate effort; or
• no. 4: the content was created by the consumer together with others, provided that other consumers can continue to use the content.

According to Sec. 327p para. 3 BGB, the trader must, upon request, also provide the consumer with the content provided or created by the consumer (free of charge, within a reasonable period of time and in a common and machine-readable format). This does not apply to the above exceptions no. 1 to 3, however, it does apply in the case of no. 4.

VI. What are the new provisions for the expiry of / exceptions from the consumer's right of withdrawal?

In the case of contracts for the provision of services where the consumer does not pay a price but provides personal data, the right of withdrawal expires when the services are fully provided (Sec. 356 para. 4 No. 1 BGB), e.g. in case of a one-time-provision of a file for download. If a service is to be provided permanently (or for a longer term), the right of withdrawal does not expire with the first provision. In this case the general withdrawal period of 14 days applies.

With regard to contracts for the provision of services for which the consumer pays a price, the right of withdrawal does not expire until the services have been fully provided and the consumer has consented to the service before the expiry of the withdrawal period acknowledging the expiry of the right of withdrawal (Sec. 356 para. 4 No. 2 BGB).

Sec. 356 para. 4 BGB does not apply if the service owed is repair work which is carried out before or in the course of an expressly requested visit. Germany has therefore made use of a corresponding opening clause in the Omnibus Directive.

In the case of contracts for digital content that is not delivered on a durable medium and for which no price is paid, the right of withdrawal expires at the beginning of the performance of the contract (Sec. 356 para. 5 No. 1 BGB).

With regard to contracts for digital content that is not delivered on a durable medium and for which the consumer pays a price, the right of withdrawal only expires if the consumer expressly consents to the performance during the withdrawal period confirming his knowledge about the expiry of the right of withdrawal and the trader expressly confirms this consent to the consumer - depending on the type of contract concluded - in the form laid out in Sec. 312f BGB (Sec. 356 para. 5 No. 2 BGB).

VII. What penalties can be imposed for infringements of consumer rights?

Germany has implemented a penalty provision in Art. 246e EGBGB for infringements of consumer rights related to consumer contracts. See section A.

E. Optional Provisions and Deviations

Has the Member State transposed a provision which is optional under the Omnibus Directive or made use of a deviation possibility provided for therein?

Optional provisions/deviations:

• Art. 8b para. 2 Unfair Contract Terms Directive: Germany has made use of the optional limitation of penalties for infringements of consumer rights related to consumer contracts (see section A.).
• Art. 6a No. 3 to 5 Price Indication Directive: Germany has made use of the option to exempt certain prodcuts or practices from the obligation to indicate the prior price when announcing a price reduction (see section B. I.).
• Art. 3 para. 5 Unfair Commercial Practices Directive: Germany has made use of the option to regulate new obligations for consumer protection against unfair practices in commercial excursions (see section C. IV.). No use was made of the option to do this in the context of doorstep selling.
• Art. 11a Unfair Commercial Practices Directive: Germany has determined the conditions for the application and the effects of remedies for consumers harmed by unfair commercial practices (see section C. VII.).
• Art. 13 Unfair Commercial Practices Directive: Germany has laid down the rules on penalties applicable for the infringement of consumer rights by unfair commercial practices (see section C. VIII.). It refrained from acting on the option to regulate higher maximum fines than the ones provided for in the Directive.
• Art. 6a para. 2 Consumer Rights Directive: Germany has made use of the option to regulate additional information obligations for online marketplace operators (see section D. IV.).
• Art. 9 para. 1a Consumer Rights Directive: No use was made of the option to extend the withdrawal period for consumer contracts concluded on occasion of doorstep selling or commercial excursions to 30 days.
• Art. 16 para. 2 Consumer Rights Directive: No use was made of the option to derogate from some of the exceptions from the right of withdrawal set out in Art. 16 para. 1 for contracts concluded in the context of doorstep selling or commercial excursions.
• Art. 16 para. 3 Consumer Rights Directive: Germany has made use of the option to provide that in the case of service contracts where the consumer has specifically requested a visit from the trader for the purpose of carrying out repairs, the consumer loses the right of withdrawal after the service has been fully performed provided that the performance has begun with the consumer's prior consent (see section D. VI.).
• Art. 24 Consumer Rights Directive: Germany has not made use of the option to regulate higher maximum fines than the ones provided for in the Directive (see section A.).

Noteworthy points arising from legislative changes

In addition to transposing the Omnibus Directive, Germany has also implemented/amended other consumer rights provisions under the Fair Consumer Contracts Act.

Since 1 January 2022, assignments by the consumer for monetary claims can no longer be generally excluded by general terms and conditions (Sec. 308 no. 9 BGB). This also applies to other claims and rights of consumers if the trader has no legitimate interest or if the legitimate interest of the consumer outweighs this. Exceptions exist for claims arising from certain payment service agreements and pension benefits.

As of 1 March 2022, the conclusion and extension of long-term agreements with consumers by general terms and conditions will become more difficult. The new Sec. 309 no. 9 BGB prohibits not only a GT&C provision which stipulates a binding contractual term of more than two years but also the provision of a tacit extension of the contractual relationship, unless the contractual relationship is extended for an indefinite period and the other party is granted the right to terminate the extended contractual relationship at any time with a notice period of no more than one month.

In addition, the legislator has reduced the admissable notice period for termination of the contract from 3 months to 1 month.

As of 1 July 2022, traders must implement a “cancellation button” enabling consumers to terminate ongoing contracts completed on their websites (Sec. 312k BGB). The functionality is mandatory and must be permanently accessible. In addition, it must be legible and clearly labelled (for example, with the text "Cancel contracts here"). The button must lead consumers to a confirmation page where they can provide information on: (i) the type of termination and, in the case of extraordinary termination, the reason for the termination; (ii) clear means of identification; (iii) a clear identification of the contract; (iv) the time at which the termination shall take effect; and (v) contact data to confirm the termination easily by electronic means. The website must also include a confirmation button that allows consumers to directly submit the cancellation. It must be legibly labelled with nothing other than the words "cancel now" or similarly clear wording.

Notable case law and/or enforcement action

N/A