Competition Law, Marketing Law

Free competition between market participants requires general and binding rules to protect competitors, consumers and other market participants from unfair acts and practices and to allow free and fair competition on the merits. This is the purpose of competition law, which draws its legal basis essentially from the Act against Unfair Competition (UWG), as well as from European regulations or special legislation, such as the German Telemedia Act (TMG), the Pricing Ordinance (Preisangabenverordnung - PAngV) or the Book Price Act (Buchpreisbindungsgesetz - BuchPrG). As a rule, it is up to the market participants themselves to punish antitrust violations law.

Marketing law concerns a specific area of business activities, the aim of which is to promote and sell own products on the market as efficiently as possible. Various possibilities are available in this regard, which can be divided into online and offline marketing. For both forms of marketing, different legal conditions must be taken into account to avoid antitrust warnings from competitors or consumer associations.

Online and digital marketing as part of competition law

Online and digital marketing, in particular, is the fastest growing and most exciting marketing area for many companies.. This is of course mainly due to the rapid pace of technological development and the almost endless related possibilities. However, precisely because of these innovations, many marketing departments and companies are operating without being aware of the consequences of a specific marketing activity. In many areas, competitive pressure often results in a company operating virtually on the border of what is permitted, or even beyond, in pursuing a chosen marketing activity. Especially when using trackers, cookies and social plugins, the legal requirements are not always clearly defined, which often leads to legal uncertainty. This is especially true in light of the EU General Data Protection Regulation in force since 25 May 2018. This legal field is facing further legal upheavals due to the ePrivacy Regulation announced for 2019. In this regard, all businesses should pay particular attention to the relevant case law and opinions of the authorities concerned.

When using 'marketing automation' tools, the special requirements of the Telemedia Act (TMG), which are already relevant during the planning, must be taken into account as well, especially if you create user profiles of your customers or website visitors.

Other important marketing tools

In addition, email and telephone marketing play a considerable role in marketing. Both forms are governed by the specific requirements of the Law against Unfair Competition (UWG). For email advertising, the requirements of No. 3 of section 7(2)  UWG must always be taken into account, meaning that for the purposes of email marketing, the sending of advertising without the prior express consent of the recipient always constitutes unacceptable harassment. The requirements for cold calls to customers pursuant to No. 2 of section 7(2) are similarly strict.

Websites are also a popular marketing tool. In this regard, legally compliant design must be ensured with due regard to the requirements of the Telemedia Act (TMG) and the Data Protection Regulation.

The same requirements also apply to online stores on selling platforms such as eBay or Amazon. On these platforms, the risk of being confronted with a warning letter in terms of competition law is particularly high if the website is not compliant.

Our consulting services

Our range of services include, e.g.:

Competition law:

  • Legal review of market behaviour of competitors
  • Review of proposed actions in regard to their legal validity
  • Prosecution of and defence against competition infringements (cease and desist claims, requests for information, damages)
  • Warning letters, injunctions and lawsuits
  • Modified cease and desist declarations, protective letters, settlement negotiations

 Marketing law:

  • Review of corporate marketing activities, especially your website, online stores and online portals
  • Advice on the requirements for a legally compliant use of cookies
  • Support and collaboration in the design of online and offline marketing and advertising measures, including Data Driven Marketing and Customer Relations Management (CRM) systems
  • Support of product launches and their distribution
  • Contract design

Lectures and publications on competition law and marketing law

Due to ongoing advanced training and their widespread practical experience, our consultants are always up to date with current legal developments in the field of competition law and  marketing law. In addition, we are regularly invited to speak on these topics at conferences and seminars and regularly publish contributions on issues or legislative changes that are relevant in practical terms in various specialist journals. If related legal areas are concerned, e.g. data protection law, IT-law or distribution law, we can rely on the expertise of colleagues specialising in these areas to offer our clients comprehensive legal services and assistance. For cross-border cases, we can rely on our colleagues in Italy and Poland, as well as on the law firms with whom we cooperate in the framework of the DIRO AG European network of lawyers, of which Derra, Meyer & Partner is a member.

Contact Person

Current Issues

01 Apr
2020

Facilitation of tenancy law and other permanent contractual obligations for consumers and micro-enterprises

On 27.03.2020, the Bundesrat (Upper house of Parliament) approved numerous changes, among others in tenancy law, but also for other contractual relationships, which the Bundestag had passed two days earlier.

read more

On 27.03.2020, the Bundesrat (Upper house of Parliament) approved numerous changes, among others in tenancy law, but also for other contractual relationships, which the Bundestag had passed two days earlier.


The law aims at alleviating the consequences of the Corona pandemic for citizens who, among other things, earn considerably lower incomes through job losses, short-time work or childcare and who are therefore often no longer able to cover their running costs such as rent, loans and other maintenance costs. However, it is also intended to help micro-enterprises (companies with fewer than 10 employees or an annual balance sheet total of less than EUR 2 million) confronted with considerable losses in turnover due to the corona pandemic.


The law not only provides relief for tenency/lease contracts and loan obligations, but also for a large number of other so-called permanent debt relationships (i.e. contracts under which the individual is obliged to make monthly recurring payments), from which payment obligations arise.
However, it should be noted that payment obligations arising from the contractual relationships do not cease to apply!
All measures described below are subject to one key condition: the consumer or micro-enterprise is particularly affected by the effects of the COVID pandemic. The debtors have to prove that they are particularly affected by the protective measures initiated by the authorities or the resulting economic consequences such as loss of jobs, short-time work, childcare, lack of orders, cancellations etc.

 

Continuing obligations

With regard to continuing obligations, Article 5 of the Act, amending Article 240 of the Introductory Act to the Civil Code, stipulates that the consumer who is party to a contract with a continuing obligation in the field of basic public services (e.g. electricity, water, gas and telecommunications), may refuse due payments until 30 June 2020 on the condition that the contract was concluded before 8 March 2020 and he is not in a position to provide for payment without jeopardising his reasonable livelihood or those of his relatives due to the Corona pandemic.
The microentrepreneurs, on the other hand, have a far-reaching right to refuse fulfilment of their contractual obligations. Until 30 June 2020, they can refuse fulfilment of their contractual obligations for all essential contracts that are necessary for the appropriate continuation of their business operations, including leasing, insurance and beer supply contracts.


However, this temporary right to refuse fulfilment may not be exercised if this is unacceptable for the creditor and would endanger his economic basis. In that case, however, the consumer or the microentrepreneur is entitled to terminate the contractual relationship prematurely in order to free himself from those payment obligations he is unable to meet.
However, the right to refuse fulfilment of contractual obligations does not apply to tenancy/leasing relationships, employment and loan agreements.

 

Tenancy / lease agreements

With regard to tenancy / lease agreements, the following special rules apply:
Tenants/leaseholders as well as micro-enterprises unable to pay their rent due to the spreading of the coronavirus are protected against termination of their contract for a limited period of time. At the moment, this only applies if rent is not paid within the period from 01.04.2020 to 30.06.2020.  Termination of the contract on the basis of failure to pay rent is excluded only until 30.06.2022. Until that date, the outstanding rent from the period April to June 2020 must have been paid.

 

Consumer loan agreement

Further measures to alleviate the effects of the Coronavirus regard consumer loan agreements:
In the case of consumer loan agreements concluded before 15.03.2020, payments (interest and principal) due in the period from April to June 2020 are to be deferred for 3 months. However, the parties to the contract may also make different agreements. During the period of deferral termination should be excluded. If no agreement is reached between the parties, the term of the contract shall be automatically extended by the deferred 3 months. Here, too, deferral is not feasible if it is not acceptable for the lender.


The regulations concerning the loans also concern all joint and several claims for compensation under § 426 BGB.
The Federal Government is authorised to extend the regulations on consumer loan agreements to micro-entrepreneurs, but has not yet done so.

 

Residential property law

Relief is also available in numerous other areas of law, including residential property law.
The aim is to enable owner communities remain capable of acting, despite the currently limited freedom of movement and assembly. Powers of the current administrators have been therefore extended until their re-election or the appointment of a new administrator. Furthermore, the continuation of the previous business plan was ordered. According to the legislator, however, the owner communities ought not hold their meetings online or in written form like the cooperatives or associations, but hold them in their usual form after the main protective measures have been terminated.

 

Final remark

As a general rule, all regulations are  time-limited. An extension of the deadlines by the Federal Government until 30.09.2020 is possible and already provided for by law.
Once the current exceptional situation has ended, there will be a return to the previous legal situation.

Please note that the above information only reflects the current state of information and may change over time. Neither can the information provided under any circumstances replace a consultation tailored to the individual case in question. Further legal and updated information on the Corona crisis can also be found at www.derra.eu. Our attorneys will be happy to provide you with individual advice at any time.

On 27.03.2020, the Bundesrat (Upper house of Parliament) approved numerous changes, among others in tenancy law, but also for other contractual relationships, which the Bundestag had passed two days earlier.


The law aims at alleviating the consequences of the Corona pandemic for citizens who, among other things, earn considerably lower incomes through job losses, short-time work or childcare and who are therefore often no longer able to cover their running costs such as rent, loans and other maintenance costs. However, it is also intended to help micro-enterprises (companies with fewer than 10 employees or an annual balance sheet total of less than EUR 2 million) confronted with considerable losses in turnover due to the corona pandemic.


The law not only provides relief for tenency/lease contracts and loan obligations, but also for a large number of other so-called permanent debt relationships (i.e. contracts under which the individual is obliged to make monthly recurring payments), from which payment obligations arise.
However, it should be noted that payment obligations arising from the contractual relationships do not cease to apply!
All measures described below are subject to one key condition: the consumer or micro-enterprise is particularly affected by the effects of the COVID pandemic. The debtors have to prove that they are particularly affected by the protective measures initiated by the authorities or the resulting economic consequences such as loss of jobs, short-time work, childcare, lack of orders, cancellations etc.

 

Continuing obligations

With regard to continuing obligations, Article 5 of the Act, amending Article 240 of the Introductory Act to the Civil Code, stipulates that the consumer who is party to a contract with a continuing obligation in the field of basic public services (e.g. electricity, water, gas and telecommunications), may refuse due payments until 30 June 2020 on the condition that the contract was concluded before 8 March 2020 and he is not in a position to provide for payment without jeopardising his reasonable livelihood or those of his relatives due to the Corona pandemic.
The microentrepreneurs, on the other hand, have a far-reaching right to refuse fulfilment of their contractual obligations. Until 30 June 2020, they can refuse fulfilment of their contractual obligations for all essential contracts that are necessary for the appropriate continuation of their business operations, including leasing, insurance and beer supply contracts.


However, this temporary right to refuse fulfilment may not be exercised if this is unacceptable for the creditor and would endanger his economic basis. In that case, however, the consumer or the microentrepreneur is entitled to terminate the contractual relationship prematurely in order to free himself from those payment obligations he is unable to meet.
However, the right to refuse fulfilment of contractual obligations does not apply to tenancy/leasing relationships, employment and loan agreements.

 

Tenancy / lease agreements

With regard to tenancy / lease agreements, the following special rules apply:
Tenants/leaseholders as well as micro-enterprises unable to pay their rent due to the spreading of the coronavirus are protected against termination of their contract for a limited period of time. At the moment, this only applies if rent is not paid within the period from 01.04.2020 to 30.06.2020.  Termination of the contract on the basis of failure to pay rent is excluded only until 30.06.2022. Until that date, the outstanding rent from the period April to June 2020 must have been paid.

 

Consumer loan agreement

Further measures to alleviate the effects of the Coronavirus regard consumer loan agreements:
In the case of consumer loan agreements concluded before 15.03.2020, payments (interest and principal) due in the period from April to June 2020 are to be deferred for 3 months. However, the parties to the contract may also make different agreements. During the period of deferral termination should be excluded. If no agreement is reached between the parties, the term of the contract shall be automatically extended by the deferred 3 months. Here, too, deferral is not feasible if it is not acceptable for the lender.


The regulations concerning the loans also concern all joint and several claims for compensation under § 426 BGB.
The Federal Government is authorised to extend the regulations on consumer loan agreements to micro-entrepreneurs, but has not yet done so.

 

Residential property law

Relief is also available in numerous other areas of law, including residential property law.
The aim is to enable owner communities remain capable of acting, despite the currently limited freedom of movement and assembly. Powers of the current administrators have been therefore extended until their re-election or the appointment of a new administrator. Furthermore, the continuation of the previous business plan was ordered. According to the legislator, however, the owner communities ought not hold their meetings online or in written form like the cooperatives or associations, but hold them in their usual form after the main protective measures have been terminated.

 

Final remark

As a general rule, all regulations are  time-limited. An extension of the deadlines by the Federal Government until 30.09.2020 is possible and already provided for by law.
Once the current exceptional situation has ended, there will be a return to the previous legal situation.

Please note that the above information only reflects the current state of information and may change over time. Neither can the information provided under any circumstances replace a consultation tailored to the individual case in question. Further legal and updated information on the Corona crisis can also be found at www.derra.eu. Our attorneys will be happy to provide you with individual advice at any time.