BGH; 2023-01-26; I ZR 27/22
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2023:260123UIZR27.22.0
Date: 2023-01-26
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82023DE0126(51)_ENG_SUMJURE
JURE summary
JURE summary
The Bundesgerichtshof (hereinafter ‘the Supreme Court’) heard a case concerning the precondition for a liability for affiliated partners under competition law.
A manufacturer of mattresses selling its products both on its own website and the online retail platform Amazon (hereinafter ‘the plaintiff’) filed an action against companies of the Amazon group, all of which were domiciled in Luxembourg (hereinafter ‘the defendants’), seeking the issuance of a cease-and-desist order and the reimbursement of the pre-trial attorney costs and interest.
Within the Amazon partner program, third parties called affiliates may place links on their own websites leading to the Amazon platform. These links are called affiliate links. If a purchase is made through these links, the affiliate is paid a percentage of the purchase price as a commission. The websites of an affiliate partner within the above partner program showed several mattresses of the plaintiff with the buttons ‘buy at Amazon’ directly linked to the Amazon offer.
The plaintiff expressed the opinion that the advertisement on the website was in breach of competition laws and that the defendant was responsible for the conduct of the operator of the website.
The Landgericht Köln (hereinafter ‘the Court of First Instance’) dismissed the action as unsubstantiated. The appeal of the plaintiff was not successful. The plaintiff pursued its claim further by filing a revision with the Oberlandesgericht Köln (hereinafter ‘the Court of Appeal’). The revision was found admissible.
The international jurisdiction of German courts followed from Article 7(2) of the Brussels I Regulation (recast) (1) due to the fact that the plaintiff argued that the conduct of the operator of the website, for which the defendants were liable, was in breach of competition laws and caused a loss within the jurisdiction of the German courts seised.
The Court of Appeal was correct to state that the defendants were not liable as offenders or accessories of the breach of competition laws due to the lack of own actions or an intention to be an accessory. The Court of Appeal was also correct to exclude the liability of the defendants for persons exercising a mandate as the main reason for which business activities of a person exercising a mandate can be attributed to the business owner consists under Article 8(2) of the UWG (2) mainly in the extension of the business of the business owner.
If affiliated partners develop their own products or services, the content of which they create at their own discretion and use it with different providers in order to gain commission, the advertisement through an affiliate link is a part of the product the content of which the affiliates create in their own interest and for which are responsible. They used the links solely for the purposes of earning a commission. Such business activities of an affiliate do not represent any extension of the business operations of the business owner, in this case, the defendant.
For these reasons, the Supreme Court dismissed the revision of the plaintiff.
(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast).
(2) Gesetz gegen den unlauteren Wettbewerb (Act against Unfair Competition).