Sale of admission tickets/tickets by unauthorised dealers

In the general terms and conditions (terms and conditions) of organisers of sporting, musical or other events, it is regularly stated that the resale of acquired admission tickets (tickets) is prohibited. The Federal Court of Justice (BGH) had to decide in proceedings for injunctive relief against bundesligakarten.de, inter alia, whether the purchase of tickets from private individuals and the direct acquisition from the manufacturer under the cloak of privacy is prohibited under competition law. The claimant was a well-known football club from northern Germany.

The lower courts (LG Hamburg and OLG Hamburg) each ruled in the claimant's favour and ordered the defendant to cease and desist. The BGH partly upheld the judgments (judgment of 11.09.2008 – I ZR 74/06).

The court's decision

The purchase of admission tickets by a commercial reseller who conceals this fact constitutes an obstruction of competitors in the form of surreptitious acquisition and therefore violates the prohibition on obstruction under § 4 Nr. 10 UWG. Furthermore, the defendant's conduct also constitutes a breach of contract, since the claimant's terms and conditions expressly exclude the purchase of tickets for the purpose of (commercial) resale (ticketing). This distribution system of the claimant is also legitimate because the pricing policy pursued with it benefits those with fewer financial resources. The chosen distribution system – distribution commitment by official sales outlets – is therefore permissible without further ado.

Insofar as active advertising was carried out for the purchase of admission tickets already in circulation from private individuals, the BGH did not confirm the view of the lower courts. The lower courts took the view that this conduct also fell within the scope of inducement to breach of contract by the private initial purchaser. Karlsruhe, as the court of final instance, countered this with the argument that advertisements directed at the public are not sufficient to establish the required (improper) influence on the intended contractual party. Also decisive was the fact that the defendant's purchase 'offers' were manifestly non-binding, as is almost always the case with – even concrete – advertisements.

Exploitation of another party's breach of contract was also ultimately rejected. This would have required the existence of special circumstances, which were not present in the concrete case. In particular, knowledge of the claimant's contractual conditions was not sufficient for this purpose.