Rechtsliteratur

Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 2. Unfair Commercial Practices Directive, Chapter 4, Article 14

The article summarizes the legal aspects of misleading comparative advertising under German law. The author claims the insufficient implementation of article 14 UCP Directive in § 5 III UWG and article 6, 2 (a) of the UCP Directive in § 5 II UWG.

The author stresses the importance of a differentiation between comparative advertising in relation to B2B and B2C contracts and the importance of the Directive 2006/114/EC (MCA Directive) in the process of legal interpretation of the national implementation. He criticizes that the German legislator has not considered the amendment of the MCA Directive by article 14 of the UCP Directive. Instead, he just undertook an editorial adjustment of § 5, 3 UWG but did not mention the fact, that comparative advertising can also be misleading if it fulfills the requirements of "misleading omissions" in the sense of article 7 of the UCP Directive (=§ 5a II-IV UWG).

Further, the author is of the opinion, that § 5 II UWG exceeds the guidelines of article 6, 2 (a) of the UCP Directive and must therefore be restricted to B2C contracts in regard to comparative advertising.       

He then claims that an interpretation of the national implementation in accordance with the UCP Directive will not be sufficient to reach the full harmonisation. The author further underlines the importance of future corrections of the implementation in order to achieve the right level of protection in Germany. Until then § 5 II and III UWG need to be interpreted in accordance with the UCP Directive.