LG Berlin; 2019-04-01; 102 O 121/18
Decision by national courts in the field of European Union law — ECLI:DE:LGBE:2018:1213.102O121.18.00
Date: 2018-12-13
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82018DE1213(52)_ENG_SUMJURE
JURE summary
JURE summary
The case dealt with by the Landgericht Berlin (hereinafter ‘the Court of First Instance’) concerned an online breach of competition law conducted from abroad. The parties to the dispute were an association for the protection of competition (hereinafter ‘the plaintiff’) and a defendant domiciled in Switzerland.
The defendant was selling food products through the sale platform amazon.de and an online shop operated on its online domain R….de also on the German market. The plaintiff was an association for the protection of competition with members from the food, nutritional and dietary supplements manufacturing industries and sellers. The defendant was selling, among other items, the product ‘R… Detoxtea’. The plaintiff challenged this name and the advertising by the defendant citing unfair competition due to the fact that the defendant had been promoting unproven health-related effects of its tea which was classified as food.
The plaintiff filed an action against the defendant seeking that the defendant ceases and desists from its advertisement of the respective tea and pay a contractual penalty.
In a relation between Germany and Switzerland, the international jurisdiction regarding the cease and desist order pursued by the plaintiff followed from Article 5(3) of the new Lugano Convention (1). According to the new Lugano Convention, in online breaches of competition law, the place where the harmful event occurred is the domestic state provided that the online presence was directed to such country. The online advertisement of the defendant was primarily intended to reach German customers as it took place on a website operated by the defendant with a .de domain name.
The admissibility of the advertisement statements subject to the dispute was subject to HCVO (2) and the case fell within the scope of its applicability. The Court of First Instance concluded that the challenged statements were indeed ‘health-related claims’ within the meaning of Article 1(2) in connection with Article 2(2)(5) of the HCVO. The advertising for a tea containing the statement ‘I would recommend the Detoxtea from R… to anyone suffering from problems regarding digestion, diarrhoea or similar issues’ was a prohibited claim in advertising food products under 10 HCVO as it was not included in the list of permitted claims under Article 13 HCVO.
The Court of First decided in favour of the plaintiff’s action.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods.