Case law

  • Case Details
    • National ID: 6 U 150/09
    • Member State: Germany
    • Common Name:link
    • Decision type: Court decision in appeal
    • Decision date: 31/05/2010
    • Court: Higher Regional Court (Cologne)
    • Subject:
    • Plaintiff: BASF
    • Defendant: not disclosed
    • Keywords: B2B, B2C, general scope of the UCP Directive, professional diligence
  • Directive Articles
    Unfair Commercial Practices Directive, Chapter 2, Article 5, 2.
  • Headnote
    When chemicals are not suitable to be sold to consumers, commercial practices relating to such chemicals are outside the scope of the UCP Directive. 
  • Facts
    The plaintiff sells a certain pesticide "DE. WG" (with the active ingredient dithianon 700g/kg) in several European countries.

    The defendant is owner of a permit for the distribution within Germany of this product, purchased from the plaintiff and imported from Italy, under the denomination "Realchemie Dithianon 700".

    Only products which are in accordance with the standards of the plaintiffs are allowed to use a protected labelling. The plaintiff found out, however, that the product distributed by the defendant had higher contaminations than was allowed for the permit of the "DE. WG" product.

    The plaintiff therefore asked to terminate the distribution of the product.
  • Legal issue

    The defendant cannot claim that its behaviour meets the "professional diligence" according to § 2 I Nr. 7 UWG (the German Unfair Competition Act), as the unfair competition law is not applicable because its chemicals are not suitable to be sold to consumers.

    Another reason why the UCP Directive is not applicable, is that the goal of the Plant Protection Act is to avert dangers for the health of human beings and animals. These regulations are in relation to health aspects of products and are therefore not covered by the UCP Directive.
  • Decision

    Does the (national implementation of the) UCP Directive apply to commercial practices regarding chemicals that are not suitable to be sold to consumers?

    Full text: Full text

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  • Result
    The plaintiff's request was granted.