1. The delegation authorized to prosecute breaches of competition law professional association a lawyer with a – objectively justified – Warning, are characterized legal costs only non-refundable, when the Association of the pursuit of competition breaches “the task” has. The latter does not depend solely on, whether the fight against unfair competition is mentioned in the statute as a task of the Association. It is more important, whether the Abmahntätigkeit the Association adopted a scope for a certain duration, in which an economically rational acting federation would hire for reasons of cost to accomplish this task legally trained staff; this is the association, a certain margin of discretion zuzubilligen.

2. When applying under Paragraph 1. Principles expressed are those incurred for the legal fees recoverable warning, if the association annually 41 warnings pronounce.

Oberlandesgericht Frankfurt judgment 04.02.2016, Yeah: 6 You 150/15 – Eligibility of legal fees for warning by a professional association

LG Frankfurt am Main – 10.06.2015 – THE: 3-8 The 164/14

UWG § 8 Abs. 3 No.. 2
UWG § 12 Abs. 1 No.. 2

OLG Frankfurt am Main, 04.02.2016 – 6 You 150/15
basic principle:
1.
The delegation authorized to prosecute breaches of competition law professional association a lawyer with a – objectively justified – Warning, are characterized legal costs only non-refundable, when the Association of the pursuit of competition breaches “the task” has. The latter does not depend solely on, whether the fight against unfair competition is mentioned in the statute as a task of the Association. It is more important, whether the Abmahntätigkeit the Association adopted a scope for a certain duration, in which an economically rational acting federation would hire for reasons of cost to accomplish this task legally trained staff; this is the association, a certain margin of discretion zuzubilligen.
2.
When applying under Paragraph 1. Principles expressed are those incurred for the legal fees recoverable warning, if the association annually 41 warnings pronounce.
Tenor:
The appeal of the defendant against the 10.6.2015 announced the judgment 8. Commercial Chamber of the Landgericht Frankfurt am Main. M. is rejected at the expense of the defendant.

This judgment and the judgment under appeal are unfunded provisionally enforceable. The defendant may enforcement by providing security in the amount of 9.000,- € avert, if fails to make the applicant prior to the enforcement of safety at the same level.

The revision will be in terms of condemnation in accordance with Clause 2. approved the operative part of the judgment.

Rationale
I.

The applicant is an association of taxi companies, which has made it its statutory mission, its members to advise on all matters relating the taxi industry and to represent; in the statutes (Bl. 79 gives.) is the pursuit of antitrust infringements not named as statutory purpose.

The defendant, a hired taxi driver, took on 2.9.2014 at Frankfurt airport a motion task at; the details of the process are in dispute between the parties.

The applicant complains that the defendant, to have available to them at this occasion, run by his taxi outside officially designated stopping places, and accepts the defendant why for restraint and reimbursement of incurred for litigation warning attorney fees in the amount of 571,44 € plus interest claim.

By the contested judgment, Reference is made to the account of the findings of fact regarding (§ 540 I, 1 Code of Civil Procedure), the Regional Court convicted the defendant on the basis of which it carries out inquiry terms sought. Against the appeal of the defendant directed.

The defendant repeated and expanded its submissions at first instance; He especially objects to the vorgenommeine Landgericht evidence and has also taken the view, the applicant was entitled to make the warning without the assistance of an attorney and must. He wears this,, the applicant deploying an extensive Abmahntätigkeit; evidenced by the statements in his club Journal “B-Journal” October 2014 did he in the reporting period 41 treated cases legally.

sought by the defendant,

amend the contested judgment and dismiss the action.

The applicant claims,

rejected the appeal.

He defends the appealed decision and submits, he had in 2014 and up to seventeen 1.12.2015 pronounced sixteen lawyers warnings; This assures the applicants representative counsel.

Because of other parties' submissions, reference is made to the memoranda together with their systems.

II.

The admissible appeal has in the matter no success. According to the result of the carried out by the district court of inquiry to the applicant are the omission alleged- and payment claims under §§ 3, 4 No.. 11 UWG i.V.m. §§ 46 Nr. 1, 47 I 1 PBefG and § 12 I 2 UWG to. In support will be made to the relevant explanations in the contested judgment regarding; also the defendant's argument in the appeal does not justify a different assessment.

1.

Without success, the defendant objected to the measures taken by the regional court findings of fact with regard to its behavior on the occasion of the referenced omission in Tenor incident. Specifically, the defendant has not put forward any concrete evidence, justified doubts about the accuracy and completeness of these findings (§ 529 And No.. 2 Code of Civil Procedure).

The fact, that the witness A's assessors on the board of the applicant, is – as the defendant submits in support of its appeal itself – in the hearing of 10.6.2015 been notified and therefore considered by the District Court as part of the evidence; the same applies to the fact, that the witness, although according to him not for his supervisory activities, will however pay for its customer service at Frankfurt Airport by the applicant. However, such a paid activity for-evidence Party can not be regarded from the outset as sufficient evidence against the correctness of the statement of the witness A. The key in such cases is primarily the personal impression, conveyed by the witness in his statement. The District Court has expressly classified Witness A to be credible. The grounds for appeal also no concrete evidence to be called, that may prevent this review by the District Court. Under these circumstances, there is no need to repeat the conducted by the regional court of inquiry.

2.

Based on the findings made by the district court of the defendant kept his taxi outside an officially approved body on the occasion of the incident at issue (§ 47 I 1 PBefG); also insofar reference is fully reflected in the relevant passages in the contested decision to be taken. The representation of the defendant, he had his taxi initially only parked, to buy a sandwich, and the passenger have him on his return on his own initiative a motion task according to § 47 I 2 issued PBefG, is contradicted by the testimony of witness A. After the defendant has waved the passengers and then received the order. However, it appears barely comprehensible, located as a passenger on foot the – not to be recognized, and as a taxi driver – Defendant a motion task could grant; nor is explained, why the defendant – as he claims – should have waved these passengers to grant the motion task. Whether the taxi sign was lit on the roof of the vehicle the defendant, is for the legal assessment in accordance with § 47 I 1 PBefG irrelevant.

Contrary to what the defendant prohibited the provision of § 47 I 1 PBefG means the holding outside an officially approved site; because only under this condition, the carriage of passengers a permissible occasional services in the form of traffic with taxis (§ 46 Nr. 1 PBefG) but.

3.

As the district court correctly pointed out, justified the infringement § 47 PBefG the alleged injunction the plaintiff from §§ 4 No.. 11, 8 III No.. 1 UWG; the omission tenor is determined sufficiently, because he takes on a time and place bounded incident reference, of the – heranzuziehenden addition to the interpretation of the operative part – Decision reasons described in more detail.

4.

The applicant is further from § 12 I 2 UWG the awarded claim for reimbursement to the charges incurred in legal fees warning. In particular, the defendant relies in this context, to no avail it, law of the Bundesgerichtshof, the legal costs are not recoverable, since the applicant had to be as a professional association able, to pursue anti-competitive practices of the kind without legal assistance.

a)

Contrary to what the defendant may by a according to § 8 III No.. 2 UWG eligible Association are not generally required, express antitrust warnings without legal assistance through its own organs or an employee. The eligibility of the association is subject to this provision because, that he intends to promote the commercial or professional interests of its members. Although the association has to carry out these general interests of its members (also personally) be sufficiently equipped; his from § 8 III No.. 2 UWG resultant power, next to pursue infringements of competition law, on the other hand depends fundamentally not stop them from, that it can also perform this task with its own staff.

After deciding, to which the defendant relies far (BGH GRUR 1984, 691 – lawyer warning), position is different only for associations, which it “the task” have, to pursue emerging competitive practices in its territory; because such organizations must be equipped to fulfill this purpose association with the means necessary for this (a.a.O. juris-Tz. 11). This does not mean however,, everyone according to § 8 III No.. 2 UWG eligible commercial association, the pursuit of competition breaches “makes the task” and therefore must be able by its own means, make appropriate warnings (vgl. see also Köhler / Bornkamm, UWG, 33. Ed, Gen. 1.93a, 1.97 to § 12 UWG). Rather, the extent must be based on the specific circumstances of the association's activities.

On “do the task” in this sense, is first added in doubt “pure” competition associations, whose stipulated object is exclusively or predominantly in, to pursue infringements of competition law in the interests of its members. Such a “competition Association” have to be – irrespective of the extent of his Abmahntätigkeit – for that reason have legally trained staff, because it otherwise the requirement of staffing i.S.v. § 8 III No.. 2 UWG could not meet to achieve this special purpose association.

These principles can be however from the reasons already shown so-called. “Trade associations” not transferred to promote other commercial or independent professional interests of its members. Nevertheless, results from the decision “lawyer warning” (a.a.O.), the one “Association” concerned in the sense illustrated, that even those organizations, the pursuit of competition breaches “do the task” can, with the result, that they must be able, speak average warnings without legal assistance. The question, according to what criteria to, when a trade association, the pursuit of competition breaches “makes the task”, has not yet been complete in the case-law of the Bundesgerichtshof. This senate is far from following general principles:

Whether the prosecution of competition law infringements is explicitly mentioned in the Articles of Association as an association end, can at most some indication, but not be the decisive criterion for, whether a trade association, the pursuit of competition breaches “the task” has. Because if the prosecution of antitrust infringements on the nature and extent actually only one “In addition to task” is, it can not come to the detriment of the Association, if he – what eligibility under § 8 III No.. 2 UWG is not required – receives this task for clarity in the statute. Conversely, it may a bandage, of the pursuit of antitrust infringements factually “the task” has, not benefit, if he has left this task in the statutes mention.

Therefore, the decisive criterion for the assessment can ultimately only be, whether the Abmahntätigkeit the trade association has adopted a scope for a certain duration, in which an economically rational acting association for cost reasons – also in the interest of potential infringers – would cease to pursue this task legally trained staff. The association has to remain quite a margin of discretion, as he wants to make his Abmahntätigkeit. Another assessment would discriminate unduly moreover such organizations in relation to competitors, which in principle can even hire a lawyer with the warning to the jurisdiction of the Federal Court, if they have their own legal department (vgl. BGH GRUR 2008, 928 [BGH 08.05.2008 – I ZR 83/06] – Abmahnkostenersatz).

As the applicant submits with law, in this context can not be ignored, that an association, pronouncing the warnings themselves, this according to § 12 I 2 UWG any case can demand payment of an administration fee, their pro rata amount for the individual warning the higher fails, be the less pronounced warnings; if and when the employment own legal staff actually leads to a lower cost burden on the violator, is therefore in extreme cases do not necessarily predictable.

b)

In applying these principles to the present case, the assignment of a lawyer with the warning by the applicant is not objectionable.

The applicant is not “reiner” competition Association, but a typical “Association”, which deals with the full enjoyment of the commercial interests of its member taxi companies; in § 2 its statutes is the pursuit of antitrust infringements also not specified as task. Critical to the question of the eligibility of legal fees is therefore the amount of deployed by the applicant Abmahntätigkeit.

The applicant stated, they have in 2014 seventeen and in 2015 (Stand 1.12.2015) pronounced sixteen lawyers warnings; This assures the applicants representative counsel. The defendant denies the accuracy of this number, claiming, in the team sheet “B-Journal” the applicant in October 2014 concerning the General Assembly 2014 hot it:

“In the fight against unfair competition have had great success. Here we have the reporting period 41 treated cases legally, either with a penalty clause, a court order or judgment were completed partially.”

The defendants representative has not submitted this report. The applicants representative has however in turn limited, to leave to the defendants representatives, “the reports, he quotes, to read correctly” (Document dated 26.10.2015; Bl. 144 gives.). To what extent the quote reproduced to be inaccurate, it has, however, not explained.

The question, however, can be left open for the decision. Even if one alleged by the defendant number of 41 subordinated warnings per year to be correct, the scope of Abmahntätigkeit the applicant is still significantly below the limit, ab der der Kläger bei Anwendung der oben genannten Grundsätze zur Durchführung von Abmahnungen ohne anwaltliche Hilfe juristisch geschultes Personal einstellen müsste. Denn wenn der Kläger im Durchschnitt mit nur einer erforderlichen Abmahnung pro Woche rechnen muss, erscheint es nicht sachgerecht, hierfür – selbst auf Teilzeitbasis – einen hinreichend qualifizierten juristischen Mitarbeiter zu beschäftigen. Dies gilt insbesondere, weil der Kläger nicht sicher vorhersehen kann, ob und in welchem Umfang sich auch künftig die Erforderlichkeit von wettbewerbsrechtlichen Abmahnungen ergeben wird. Im Übrigen ist bei einer Zahl von Abmahnungen in dem in Rede stehenden Bereich durchaus zweifelhaft, ob bei einer Einstellung eines juristisch geschulten Mitarbeiters die dann erstattungsfähige, aus den damit verbundenen Kosten errechnete Abmahnpauschale im Einzelfall überhaupt geringer wäre als die Kosten für eine anwaltliche Abmahnung.

Schließlich bestehen auch keine Anhaltspunkte dafür, dass der Kläger etwa bereits über rechtskundige Mitarbeiter verfügt, die die streitgegenständliche Abmahnung hätten aussprechen können. Allein der Umstand, dass der Kläger seinen Mitgliedern auf seiner Homepage auch “Legal advice” anbietet, lässt einen solchen Schluss nicht zu. Denn wie der Beklagte selbst vorträgt, beschränkt sich dieses Angebot der Sache nach auf die Nennung der für den Verein tätigen “Vereinsanwälte”.

Die Höhe des geltend gemachten und vom Landgericht zuerkannten Erstattungsanspruchs nebst Zinsen ist nicht zu beanstanden.

5.

Die Kostenentscheidung beruht auf § 97 I ZPO, die Entscheidung über die vorläufige Vollstreckbarkeit auf §§ 708 No.. 10, 711 Code of Civil Procedure.

Die Revision war – beschränkt auf den geltend gemachten Kostenerstattungsanspruch für die anwaltliche Abmahnung – zuzulassen, da der höchstrichterlich noch nicht entschiedenen Frage, unter welchen Voraussetzungen Fachverbände für Abmahnungen einen Anwalt beauftragen dürfen, grundsätzliche Bedeutung zukommt (§ 543 Nr. 1 Code of Civil Procedure).