Practice Area

Competition Law

Enforcement and defence of competition law claims – nationwide.

Services at a Glance

checkCease-and-desist letter and penalty-backed undertaking
checkInjunctions (interim relief)
checkFinalisation proceedings, declaration and contractual penalty
checkLitigation and contractual penalty claims
checkMisleading advertising, price labelling, quality marks and environmental claims
checkProtection of trade secrets under the GeschGehG

The competition law infringement dispute

A competition law infringement dispute follows a standardised procedural sequence: cease-and-desist letter, submission of a penalty-backed undertaking or, in the event of refusal, application for an injunction, followed by finalisation proceedings and, if necessary, main proceedings on the merits. Each stage carries its own risks and requires a strategy tailored to the party's specific position in the dispute.

For the aggrieved party, the task is to document infringements in a legally sound manner, obtain an effective undertaking or court order, and secure lasting binding effect through finalisation proceedings. Shortcomings in the early stages (an undertaking drafted too narrowly or the wrong court chosen) can burden the entire case.

For the recipient of a cease-and-desist letter, the first step is to assess whether the warning is justified. Undertakings are frequently drafted too broadly or the value in dispute is inflated; a modified undertaking can resolve the dispute without creating additional obligations. Where the warning is unjustified, a counter-warning or a negative declaratory action may be considered.

Injunctions, finalisation proceedings and contractual penalties

The injunction (einstweilige Verfügung) is the central instrument in competition law for the provisional suppression of an infringement. Courts decide in urgent cases without a prior hearing, sometimes within 24 to 48 hours. In addition to the substantive claim (the established infringement), urgency must be demonstrated. The presumption of urgency lapses if more than one month has passed since knowledge of the infringement.

After service of an injunction, finalisation proceedings follow: the applicant requests the respondent to recognise the injunction as a definitive settlement (finalisation declaration). Once the declaration is given, the proceedings are concluded without main proceedings on the merits. If the declaration is refused, an action on the merits must be brought to secure the injunctive relief on a permanent basis.

The penalty-backed undertaking contains a contractual penalty provision for the event of a repeated infringement. Disputes frequently arise over whether a repetition actually constitutes a breach of the undertaking and whether the claimed penalty is proportionate. The enforcement of contractual penalty claims and the defence against excessive demands are part of the legal representation in infringement disputes.

Misleading advertising, price labelling and reviews

Advertising is misleading under the UWG when it contains false statements or statements that, although factually correct, are capable of deceiving the addressee. The standard is the average informed, attentive and reasonable consumer.

  • Price labelling and PAngV: Missing unit prices, opaque discount advertising without disclosure of the lowest price in the preceding 30 days (Omnibus Directive) and personalised prices without labelling.
  • Quality marks and awards: Use of outdated or substantively inaccurate test results and misleadingly designed quality seals.
  • Environmental claims: Unsubstantiated or substantively vague sustainability claims (greenwashing), which may be classified as misleading under § 5 UWG.
  • Review systems (Omnibus Directive): Publication of customer reviews without verification of their authenticity and undisclosed sponsored reviews.
  • Comparison portals: Opaque ranking algorithms and undisclosed commercial influence on placements.

Advice is provided both preventively – in the design of advertising materials, product descriptions and price labels – and in enforcement or defence where a warning or claim has already been received.

Trade secrets

The Trade Secrets Act (Geschäftsgeheimnisgesetz – GeschGehG) protects information of economic value that is not generally known and is the subject of reasonable confidentiality measures. Typical examples include customer lists, calculations, recipes, technical know-how and business strategies. The Act grants the holder injunctive, damages and destruction claims; preliminary relief by way of injunction is available.

Typical scenarios:

  • Employees taking confidential information to a competitor when changing jobs
  • Disclosure of trade secrets by former service providers or business partners
  • Unauthorised access to internal systems or documents

Reasonable confidentiality measures are a prerequisite for statutory protection: contractual confidentiality clauses with employees and service providers, technical access controls, internal policies on the handling of confidential information. Without such measures, the GeschGehG does not apply, even if the information was in fact kept secret.

Frequently Asked Questions

What is a UWG cease-and-desist letter? expand_more
A UWG cease-and-desist letter is an out-of-court demand to desist from conduct considered to be in breach of competition law. It is typically accompanied by a demand to sign a penalty-backed undertaking and to reimburse the costs of the warning. Those entitled to issue warnings include competitors, associations and certain qualified bodies. The aim is to avoid costly court proceedings, which is why careful legal assessment of the justification and scope of the claims made is essential.
Must I accept a cease-and-desist letter? expand_more
No. A cease-and-desist letter is not an official order but a private law document. The undertaking demanded need not be signed in the form presented. Declarations are frequently drafted too broadly or the value in dispute inflated. Failing to respond is nevertheless inadvisable: if no response is given, the sender can immediately apply for an injunction. A modified undertaking can resolve the dispute without creating additional obligations.
When is advertising misleading? expand_more
Advertising is misleading under the UWG when it contains false statements or statements that, although factually correct, are capable of deceiving the addressee. The standard is the average informed, attentive and reasonable consumer. Misleading elements can include not only the content of a statement but also its presentation, placement or the omission of material information (misleading by omission). Typical examples: inflated crossed-out prices, unsubstantiated environmental claims, misleadingly presented test results or missing unit prices.
What does a cease-and-desist procedure cost? expand_more
The costs of a competition law cease-and-desist procedure depend on the value in dispute, which can range from 5,000 to 50,000 euros or more depending on the severity of the infringement and the market significance of the parties. The warning costs (the opposing party's legal fees) are borne by the recipient where the warning is justified. Additional costs may arise for an injunction or main proceedings. The appropriateness of the claimed value in dispute should be examined in every case.
How quickly can an injunction be obtained? expand_more
In urgent cases, courts decide on applications for injunctions in competition law without an oral hearing, often within 24 to 48 hours of the complete application being filed. The presumption of urgency may lapse if more than one month has passed since knowledge of the infringement. Early legal advice is therefore critical.
What counts as adequate trade secret protection under the GeschGehG? expand_more
Contractual confidentiality clauses with employees and service providers, technical access controls and internal policies governing the handling of confidential information. Without such measures, statutory protection does not apply, even if the information was in fact kept secret.
What is a finalisation procedure in competition law? expand_more
After an injunction has been served, the applicant is required to request the respondent to submit a finalisation declaration. By giving the finalisation declaration, the respondent acknowledges the injunction as a definitive settlement; separate main proceedings are then no longer required. If the respondent refuses to give the finalisation declaration, an action on the merits must be brought. The costs of the finalisation request are reimbursable.
What claims exist for trade secret infringement? expand_more
The GeschGehG grants the holder of a trade secret injunctive, damages and destruction claims (§§ 6 et seq. GeschGehG). Preliminary relief by way of injunction is available. In addition, information and account-rendering claims exist. A prerequisite in all cases is that the secret was protected by reasonable measures and that the infringement was unlawful.

Contact

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mailinfo@metzler-legal.de

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