In its reasoning the Senate referred to the settled case law of the BGH (Bundesgreichtshof – Federal Supreme Court), according to which sales initiatives contravene good morals if they offend the sensibilities of a sensible average businessperson or are frowned upon generally and are regarded as intolerable.
The Senate further stated that for the permissibility of telephone marketing to businesses a general business connection to its business activities is not sufficient. Moreover, there must also be a concrete reason ascertainable from the area of interest of the telephoning party. This is to be determined by reference to the perspective of the caller, who has not yet had any business dealings with the firm being contacted and therefore this assessment depends on externally recognisable matters. In the present case, such a concrete reason exists, as the firm being contacted is a small business, which could profit from the internet offer of the respondent, of which it would probably not have become aware without telephone contact.
The Senate further argued that due to the cross border nature of telephone marketing a European law assessment is also appropriate. Accordingly, the permissibility of telephone marketing is to be interpreted widely, because telephone advertising to businesses is only subject to restraints in Germany and Austria. It follows from the Distance Contracts Directive 97/7/EC, which allows telephone marketing to consumers where there is no clear objection by the consumer (Art. 10 (2) Directive 97/7), that telephone marketing to businesses in Europe is permissible, so long as no special circumstances dictate otherwise. The general clause of § 1 UWG must be interpreted widely, as conduct permissible according to European law cannot contravene good morals.