Personal liability of GbR partners in case of cease-and-desist letters?

The Higher Regional Court (OLG) Frankfurt a.M. had to decide to what extent the partners of a GbR are liable for competition law infringements on the basis of injunction, disclosure of information and damages if they themselves were not perpetrators or participants in the infringement.

A manufacturer ofnutritional supplementssued the distribution GbR that had been contractually entrusted with the distribution of these products and its partners for the dissemination of false facts to its customers on the basis of injunction, disclosure and damages.

Previously, the manufacturer had withdrawn the natural discount of 5 % initially granted to the GbR and reduced the granted discount of 3.5 % to 2 %, thus making the goods more expensive in procurement for the GbR. The GbR took this as an occasion to inform its customers in a circular letter as follows:

"Price increase X preparations

As of 1 January 2012, our supplier has announced a price increase of approximately 12 % for all X preparations. Unfortunately, we must pass this price increase on to our customers."

The manufacturer of the nutritional supplements obtained a preliminary injunction from the Regional Court (LG) against the GbR and the sued partners for the dissemination of false facts. The parties involved were prohibited from claiming that the manufacturer had announced a price increase of 12 % for all X preparations. Furthermore, the GbR and its partners were jointly and severally obligated to provide disclosure and to pay damages.

Against this, the GbR defended itself in appeal proceedings before the Higher Regional Court (OLG) Frankfurt a.M.

Court's decision

The Higher Regional Court (OLG) Frankfurt a.M. decided byjudgment of 11.09.2014, Az. 6 U 107/13that the dissemination of false statements was to be ceased. The partners of a GbR were personally liable for disclosure and damages for the competition law infringements of the partnership, regardless of whether they were involved in the infringing act themselves as perpetrators or participants or whether they could be accused of a breach of a competition law duty of care in this regard.

In the case of statutory obligations, the private assets of the partners must – as with contractual obligations as well – be available as the fund of liability.

Conclusion

According to the judgment of the Higher Regional Court (OLG) Frankfurt a.M., the partners of a GbR are also personally liable forcompetition law infringementsand are therefore obligated to monitor the corresponding advertising measures of their company if they wish to avoid cease-and-desist letters against their GbR and themselves personally.