General Data Protection Regulation – Can competitors issue warning letters for infringements for which the costs have to be paid?

The General Data Protection Regulation (GDPR) has already cost large companies in particular, a great deal of time and personnel. After the implementation deadline of 25 May 2018 has expired, it will increasingly come into focus for smaller companies, associations and the self-employed. In particular, since almost every company, every association and every self-employed person now presents themselves on their own websites or in social media on the Internet, all these companies and associations have to deal with the question of the extent to which they process personal data on their web presence and, accordingly, to what extent they have to provide information about this processing and the associated rights of the persons concerned.

In addition to this general obligation, there is also a more specific concern about receiving warning letters, for which costs must be paid, in the event that the instruction is ultimately incorrect or incomplete. In addition to the financial losses, such a warning is above all time-consuming and nerve-wracking for the person concerned.

The question therefore arises:

Is it possible for competitors to issue warning letters for breaching the GDPR’s duty to inform and instruct.
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Carrier’s liability before German courts for transported goods being damaged by refugees entering the truck

Liability lawsuits account for a considerable proportion of court proceedings in Germany in the field of transport law. German law and the Convention on the contract for the international carriage of goods by road (hereinafter referred to as CMR) both stipulate that a carrier has a limited liability for proven damage to the goods in his custody (based on the weight of the consignment). Nonetheless, in the case of so-called qualified fault, the carrier may also owe full compensation for the damage or he may be exempted from liability by providing proof of discharge. In practice, the insurance of the principal usually pays for the damage, whereby the claim for damages of the principal against the carrier is transferred to the insurance by operation of law. If the carrier (or his insurance company) refuses to pay, the matter is regularly brought to court. The jurisdiction of the German courts is based either on the provisions of the transport contract or on the law.

An interesting case concerning the carrier’s liability for damage to cargo caused by refugees travelling unrecognized in the semi-trailer was the last one I had in my practice as a lawyer. In December 2015, a German client commissioned a Polish transport company to carry out a transport from Germany to Great Britain. The drivers of the transport company drove to the Eurotunnel after being loaded in Germany. During a safety check in front of the Eurotunnel, it was established that several refugees were staying in the trailer. These were taken out of the vehicle by the French police, then the journey to Great Britain was continued and the consignment unloaded. An examination of the cargo revealed damage to the load. The transport liability insurance of the client paid for the damage and then claimed damages before a German court against the Polish carrier represented by me on the basis of an assigned right. The Koblenz Regional Court, which had jursidiction, dismissed the action brought by Verkehrshaftversicherung.
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Germany: Bundesgerichtshof – Use of third-party trade marks in Amazon – autocomplete function and hit list

Everyone knows this and has probably been annoyed by it on one or the other occasion: You enter a word, maybe even just a few letters of a word into a search engine on the internet, e.g. the Amazon search engine. A list of potential words and trade marks to search for is displayed. You are pleased, if in fact the brand you want to search for is among them and you click on this term from the list. A certain disappointment is inevitable if a long hit list is displayed, but no product of the desired brand appears in it, but only competitors’ products. This raises the following questions:

May Amazon, in its autocomplete function, name brands that neither Amazon itself nor third parties sell via the Amazon platform? Does a hit list have to contain a clarification at the beginning if only competitors’ products are displayed instead of the searched brand products? When entering or selecting a particular brand on internet platforms such as Amazon, does the internet user expect to be offered only products of that brand?

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Germany: Amendments to the Warranty Law as of 1.1.2018

Up to now, a consumer who has installed a defective item into another item, such as a house, has not only been entitled to claim from the seller the

 delivery of a new and defect-free item, but also for assumption of the costs for removing the defective item and installing the new defect-free item. However, the seller was only able to pass on the installation and dismantling costs he incurred as a result of the supplementary performance to his supplier if the supply was at fault. If the supplier was not at the same time the manufacturer of the item, fault on his side was usually denied.

The same applied in cases where a craftsman was obliged to make subsequent performance at his customer’s premises due to defects in the material he used. He, too, was only entitled to claim reimbursement of the installation and dismantling costs incurred by him as a result of subsequent performance from the supplier of his material if the supplier was at fault.

The law of 28 April 2017, made changes to the law on defects under commercial law, which affect not only consumers but also entrepreneurs and suppliers within the supply chain. The corresponding amendments to the German Civil Code came into force on 1 January 2018.


Now the supplier must carry out the removal and installation or bear the costs connected with it in the context of his legal obligation to remedy defects not only in B2C relationships, but also in B2B relationships. (Read more)


GER: Labelling of advertising by influencers in social media


Paid posts by influencers in social media, such as Instagram, Facebook, Twitter, YouTube etc. must be labelled as advertising, otherwise not only the influencer but also the advertising company can be hold liable for concealing the commercial purpose of the post (surreptitious advertising). This can lead to claims for restraining the influencer and/or the advertising company from publishing the post as was done, possible damage claims and also to the imposition of fines.

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GER: Admissibility of a statement of claim in Polish language


By a court decision of 15.03.2017, file no. 4 K 18/17, the 4th Senate of the financial court Hamburg (Finanzgericht Hamburg) decided that if the court, out of its own motion, caused a translation of a statement of claim, drafted in Polish language and filed in time, the statement of claim is deemed filed within the deadline.
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