The warning under competition law

Online retailers can make many mistakes, as numerous businesses have already experienced through the receipt of warning letters. These warning letters often result in significant costs.

In December 2020, the "Act to Strengthen Fair Competition," also known as the "Act Against Abuse of Warning Letters," came into force. It aims to minimize the misuse of warning letters and introduced additional provisions for trade associations one year later, in December 2021.

The Act against Unfair Competition (UWG) has undergone numerous changes due to the Act to Strengthen Fair Competition:

• Content of warning letters: Warning letters must now contain detailed information about the identity of the person issuing the warning, the infringement and possible costs.
• The right to issue warnings has been tightened. Occasional business activity is no more sufficient than bogus online shops to issue warnings.
• Reimbursement of warning costs: The possibility of claiming warning costs has been restricted in order to reduce the misuse of warnings, particularly in cases of violations in online trading and data protection violations.

Instructions on receiving a warning:

• Take warnings seriously
• Have the warning letter checked.
• Don't let the deadline pass

The easiest way to avoid warning letters is to have the online shop reviewed by a lawyer. However, if the online retailer has already received a warning letter, it's important to first determine whether the warning is justified and then agree on what steps should be taken.

• Competitors
• Legally recognized business associations, registered in the list of qualified business associations (www.bundesjustizamt.de)
• Chambers of Commerce and Industry
• Qualified institutions, registered in the list of qualified institutions under the Injunctions Act at the Federal Office of Justice
• trade unions

• The person issuing the warning has no or only insignificant business activity
• The warning letter has only recently entered the market
• The contractual penalty is very high
• The number of warnings issued is very high

• Who issues a warning?
• What is the basis for issuing a warning?
• Are warning costs claimed?
• Is a cease and desist declaration required?

Step 1

Have it checked whether the person issuing the warning is authorized to issue a warning.
Have your company investigate whether a competition violation actually exists? Are the facts presented correct?

Step 2

Meet deadlines. Seek legal advice immediately. The more time you have to review your options, the better your strategy will be.

Step 3

Discuss with legal counsel the appropriate strategy and response to the warning.