Injunctions Directive, Article 3 Injunctions Directive, Article 3

ECLI:DE:OVGNRW:2018:0416.4A1621.14.00

An investor protection association, which is closely associated with an investor protection law firm, may not be qualified to bring an action to protect collective interests under the UKlaG because of the threat of a conflict of interests.

In 2010, the plaintiff applied to the Federal Office of Justice for entry in the list of qualified entities under the UKlaG (Injunctions Act), which is a prerequisite for filing a collective action to assert consumer protection interests. The Federal Office had rejected this application with reference to a possible conflict of interests, as the plaintiff was closely associated with an investor protection law firm. The First Instance Court (Verwaltungsgericht) dismissed the complaint. The appeal in the second instance (Oberverwaltungsgericht) was also unsuccessful.

The main legal issue was whether the investor protection association did actually fulfil the conditions for registration under the UKlaG (Injunctions Act), which is the transposition of the Directive 2009/22/EC

In the light of article 4 paragraph 2 UKlaG and the European legislation, the consumer information and advice must not serve the economic interests of the association or third parties to any significant extent.

In view of the documents submitted by the plaintiff on the association's activities and its connection to a law firm specialised in banking and capital market law, it cannot be ruled out that the association also serves the economic interests of the law firm.

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The plaintiff's appeal was unsuccessful, as the action was unfounded.

The plaintiff is not entitled to be entered on the list of qualified entities under article 4 paragraph 2 UKlaG.

In April 2018 it was published that the Senate of the court of appeal (Oberverwaltungsgericht) had admitted the revision-appeal to the Federal Administrative Court because of its fundamental importance. For the time being, there is no further information available on this case.