OLG Hamm on reporting illegality in e-commerce
A company is not in breach of competition law if it reports illegality by a competitor on an online e-commerce platform and the allegations are true. That was the verdict of the Oberlandesgericht (OLG) Hamm – the Higher Regional Court of Hamm.
Antitrust infringements are a persistent feature of the e-commerce landscape. Large online platforms have for this reason put in place reporting systems for these kinds of violations, with offers being delisted when flagged accordingly. Of course, this is not meant to give rise to unwarranted complaints against competitors that hinder their business operations. We at the commercial law firm MTR Rechtsanwälte note that unwarranted complaints are contrary to the German Unfair Competition Act (Gesetz gegen den unlauteren Wettbewerb, UWG) and represent antitrust infringements in and of themselves.
The situation is different, however, if a company reports a rival business to the party operating a commercial platform in response to actual illegality. A ruling of the OLG Hamm from October 8, 2020 found that this does not constitute an anticompetitive infringement.
The plaintiff in the instant case sells lamps and lights via a large commercial platform online. It reported a violation on the part of a competitor that had failed to provide the necessary information regarding the energy efficiency class of lamps in relation to two offers. The online platform subsequently removed these and an additional ten offers by the party responding to the lawsuit from its listing. The latter then had the plaintiff issued with a formal warning, arguing that the complaint was unfair, amounted to an act of commercial aggression, libel, a concerted effort to hinder its business, and was in violation of the UWG. The plaintiff responded in kind with its own warning letter, demanding that the responding party refrain from continuing to advertise the lamps without the required labeling. Furthermore, it sought a declarative statement confirming that the responding party had no claims against it.
The plaintiff was successful both at first instance and in the appeal proceedings before the OLG Hamm, which found that the complaint submitted in relation to the online platform was justified and did not amount to an unfair business practice, and that the product labelling was in fact inaccurate. Thus, the complaint constituted neither an act of commercial aggression, nor libel, slander, or an obstruction.
Anyone considering reporting antitrust infringements to the party running an online platform ought to be sure that the allegations are true, as flagging another party without justification may backfire and give rise to formal warnings and damages claims.
Lawyers with experience in the fields of antitrust and competition law can serve as advisors.