Caution
Warning letters ahead

wein.plus helps Business Premium members

The good news first: On 10.09.2020, the law against the abuse of cease-and-desist letters was passed by the Bundestag: "Cease-and-desist letters should be issued in the interest of legally neutral competition or the enforcement of consumer law and should not be used to generate reimbursement of expenses and contractual penalties." This is the reasoning of former Federal Minister of Justice Katarina Barley (SPD).

With the help of the new law, higher requirements for the authority to assert claims, the reduction of financial incentives for warning letters, more transparency and simplified possibilities for asserting counterclaims are to bring about significantly improved protection against abusive warning letters. The goal: to halve the abuse of warning letters. It is therefore a good thing that the Bundestag finally recognises the abuse of warning letters for profit as a fact in need of regulation and wants to combat it - in theory.

New law will hardly curb warning letters

In practice, however, it is something else. Even with capped contractual penalties of 1,000 euros, it will continue to be impossible to deny that the traditional cease-and-desist letter writers have a predominantly financial interest. Within the now legally clearly outlined framework, they may therefore continue to issue unrestrained and mass warnings for violations of information and labelling obligations as well as DSGVO violations at small companies with up to 250 employees. Unfortunately, the requirements for the qualification of associations as "authorised to issue warnings" are so broadly defined in the law that the real black sheep will continue to fall through the cracks in the future. Although the Federal Office of Justice (Bundesamt für Justiz, BfJ) is supposed to carry out controls, they will only be based on the associations' self-disclosure of their warning behaviour - other controls, such as the introduction of an online register for warnings, were not included in the new law.

Affected wein.plus members get free, competent help

Nevertheless, the specialised lawyer Hans-Peter Kröger reports that almost daily warnings from dubious law firms and warning associations still bring many wine merchants to their knees because they cannot afford the financial and human resources for a court case. Often, their only option is to enter into tough and gruelling negotiations with the warning agents in order to at least reduce the costs and modify the demanded cease-and-desist declaration. Because once signed, the cease-and-desist declaration can become an existence-threatening boomerang for the online shop operators - for life. That this does not happen will henceforth determine the online business life of the traders. For this reason, wein.plus has arranged for its Business Premium members to cooperate with a lawyer who has been experienced in this field for many years: If a warning notice is received, Hans-Peter Kröger will advise them free of charge and without obligation about the legal situation and the right strategy in the individual case. In most cases, he also offers members a particularly favourable flat rate, which is significantly lower than the usual fees.

Currently, Kröger is heavily involved with the Wettbewerbszentrale (Zentrale zur Bekämpfung unlauteren Wettbewerbs Frankfurt am Main e. V.), the VSV (Verbraucherschutzverein gegen unlauteren Wettbewerb e.V.) and the IDO (Interessenverband für das Rechts- und Finanzconsulting deutscher Online- Unternehmen e.V.). They are not only issuing warnings with the same frequency as before, but are also claiming contractual penalties. "As we know, it is not the - often unfortunately justified - warning letters that are the problem, but the contractual penalties, often costing several thousand euros, that are claimed for every new mistake based on the previously submitted cease-and-desist declaration," emphasises Hans-Peter Kröger.

Further information: https://magazin.wein.plus