Partial delivery and partial invoice clauses in terms and conditions are anticompetitive

By means of a decision dated 25.01.2008 (5 W 344/07), the Court of Appeal of Berlin (KG Berlin) confirmed its case law to the effect that ineffective standard terms and conditions clauses are regularly also anticompetitive and subject to cease-and-desist notices. In contrast to the Higher Regional Court of Hamburg (OLG Hamburg) and the Higher Regional Court of Cologne (OLG Köln), this view was already held prior to the direct application of the Directive on unfair commercial practices (2005/29/EG) on 12.12.2007.

Earlier judgments, in particular from the Higher Regional Court of Cologne (OLG Köln) and the Higher Regional Court of Hamburg (OLG Hamburg), are likely to have become obsolete since the Directive came into force. The courts had previously assumed that clauses in general terms and conditions that violated consumer protection provisions and were therefore ineffective affected exclusively the individual contractual relationship and contract performance and therefore were not market behaviour-regulating within the meaning of § 4 Nr. 11 UWG. By contrast, the scope of application of the UGP Directive covers, as evidenced by Art. 3 Abs. 1, unfair commercial practices before, during and after conclusion of a contract, which in future will present difficulties for the aforementioned view from Hamburg and Cologne.

According to the Court of Appeal of Berlin (KG Berlin), the anticompetitive conduct in the case of ineffective standard terms and conditions clauses – irrespective of the UGP Directive – results from the fact that these are contract terms which are pre-formulated for a plurality of contracts. The protective provisions that lead to ineffectiveness (§§ 307 ff. BGB) therefore aimed at (also) affording typified interest protection to the market counterparty as consumer.

In the specific case at issue was the clause"Partial deliveries and partial invoices are permitted". This clause violates §§ 307 Abs. 2 Nr. 1, 309 Nr. 2a BGB, which constitutes anticompetitive conduct pursuant to §§ 4 Nr. 11, 3 UWG. According to the court's reasoning, the contracting party is namely deprived of its statutory right to refuse performance under § 320 BGB, which permits the withholding of the purchase price until complete delivery. The violation of this statutory principle furthermore disadvantages the buyer unreasonably.