Must IDO Verband Refund Warning Letter Costs?

IDO Verband was previously known for competition law warning letters in online commerce. After the allegation of abuse of law had been judicially confirmed on multiple occasions, the Regional Court (LG) Cologne ordered the association to refund warning letter costs.

An online merchant who had been warned by IDO Verband and had issued a declaration subject to penalty brought the claim. The merchant had also originally paid the demanded warning letter costs.

Six years later, the online merchant terminated the declaration due to abuse of law and requested IDO Verband to refund the paid warning letter costs as well as the legal prosecution costs incurred by him.

Subsequently, the merchant sued for the payment claims, including a paid contractual penalty.

LG Cologne Confirmed Damages against IDO Verband

By judgment of 26.01.2022 – 81 O 35/21 the LG Cologne granted the claim and ordered IDO Verband to pay damages in the amount of the claim.

The court has once again confirmed that the competition law proceedings of IDO Verband against the merchant should be classified as abusive overall.

The facts permitted the conclusion that the entire activity of IDO Verband was primarily directed at providing persons working for the association with disproportionately high remuneration and other benefits, in particular from revenues derived from warning letter costs and contractual penalties. This alone justified the finding of abuse of law.

Moreover, the court was convinced that IDO Verband systematically favoured its own members. By contrast, identical or similar competition law violations against non-members were warned and pursued in court. This also established the finding of abusive conduct.

Conclusion

Previously, the LG Cologne (judgment of 22.04.2021 – 81 O 102/20) had classified IDO Verband's conduct as abusive. The association withdrew its appeal following a corresponding notice from the Higher Regional Court (OLG) Cologne (order of 25.08.2021 – 6 U 67/21).

In the current case, the court has now also confirmed a damages claim by the warned merchant resulting from the abusive warning letter.

IDO Verband had filed an appeal against the judgment.

UPDATE: On appeal by IDO Verband, the judgment of LG Cologne of 26.01.2022 was Higher Regional Court (OLG) Cologne (judgment of 09.12.2022 – 6 U 40/22) modified and the merchant's claim was dismissed. Regardless of the allegation of abuse of law, there was no right to repayment in the absence of a legal basis for the claim. Revision was not permitted.