Case law

  • Case Details
    • National ID: link
    • Member State: Germany
    • Common Name:link
    • Decision type: Court decision in appeal
    • Decision date: 11/08/2015
    • Court: Higher Regional Court of Hamm
    • Subject:
    • Plaintiff: Unknown (bicycle vendor)
    • Defendant: Unknown
    • Keywords: black list
  • Directive Articles
    Unfair Commercial Practices Directive, Chapter 2, Article 5, 5. Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7, 4. Unfair Commercial Practices Directive, Annex I, 5. Consumer Rights Directive, link
  • Headnote
    (1) No. 5 of the Annex to § 3 III UWG also applies to offers on the Internet.

    (2) In view of the constant updatability of Internet offers, it is prohibited to offer a product on the Internet which is no longer available, in accordance with § UWG § 3 UWG § 3 paragraph III, in conjunction with No. 5 of the Annex to § 3 III UWG.
  • Facts
    An online retailer was selling electric bikes through his online shop. Within the framework of the order process, the following text was displayed to a test customer (here a competitor's attorney) when ordering a bicycle of the model "XY 2014" (2014 for the model year): “Only a few copies in stock, delivery time 2-4 workdays."

    The attorney of the other shop completed a test order of this bike. Immediately after completion of the order, he received an order confirmation with the request to transfer the purchase price. A short time (about 45 minutes) afterwards, the lawyer received a mail from an employee of the online shop:

    "Good afternoon, Mr C,
    We currently do not have the ordered wheel, we get the 2015 model in January. How should we act?
    Kind regards

    The online shop had sold the last bike of this model 4 days before to another customer, who had already paid for it completely.
  • Legal issue
    The court held that in view of the constant updating of internet offers, which is expressly emphasized by the BGH, it is in any case inadmissible to leave an offer for a product which is no longer available on the Internet, according to No. 5 of the Annex to § 3 (3) UWG.

    The fact that the website stated that "there are only a few copies in stock" did not suffice to clarify to the customers about the lack of a corresponding stock of goods. On the contrary, customers would understand this to mean that the supplier actually still has the goods in question, and that the notice merely urges the customer not to wait too long to purchase the goods.
  • Decision

    (1) Does No. 5 of the Annex to § 3 III UWG also apply to offers on the internet?

    (2) May an online retailer allow an offer for a product which is no longer available to remain available on the Internet?

    URL: N/A

    Full text: Full text

  • Related Cases

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  • Result
    The defendant’s appeal was rejected.