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Editorial

LG Wiesbaden – Competitors not entitled to issue a warning in response to violations of the GDPR

April 2019 - EU & Competition. Legal Developments by GRP Rainer LLP.

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In a judgment from November 5, 2018, the Landgericht (LG) Wiesbaden, the Regional Court of Wiesbaden, ruled that competitors are not entitled to issue a formal warning notice in response to violations of General Data Protection Regulation (GDPR) (Az. 5 O 214/18).

The courts continue to deliver different judgments on the issue of whether a violation of the General Data Protection Act, GDPR for short, constitutes a violation of competition law and therefore entitles competitors to issue a formal warning notice. We at the commercial law firm GRP Rainer Rechtsanwälte can report that the Landgericht Wiesbaden has now ruled that competitors cannot issue a formal warning notice pursuant to competition law in response to a violation of the GDPR.

In the instant case, a credit inquiry agency had brought an action for an injunction against a competitor, claiming that the latter was now providing those concerned with incomplete information and only in paper form. The plaintiff saw this as a violation of the GDPR. The LG Wiesbaden nonetheless concluded that the plaintiff was neither entitled to claim nor did it have legal standing as a competitor pursuant to the Gesetz gegen den unlauteren Wettbewerb (UWG), Germany’s Unfair Competition Act.

The LG Wiesbaden took the view that the scope of action and possible measures laid out in the provisions of the GDPR are exhaustive. The Court followed the line of reasoning set out by the Landgericht (LG) Bochum. The latter held that claims brought by competitors are governed exclusively and exhaustively by articles 77 to 84 of the Regulation. Accordingly, not every association is entitled to exercise the rights accruing to an affected person; only certain establishments, organizations and associations operating on a not-for-profit basis are able to do so subject to further conditions. The LG Bochum therefore concluded that the legislature did not intend to extend this right to competitors and that it wished to prevent them from being able to issue their rivals with formal warning notices in response to violations of the GDPR.

Notwithstanding the rulings of the LG Bochum and, more recently, the LG Wiesbaden, the LG Würzburg considered a violation of the GDPR a violation of the UWG. It therefore also recognized the possibility for competitors to issue a formal warning.

There is, as of yet, no unified case law regarding violations of the GDPR. To avoid legal disputes, businesses and traders ought to review whether they are in compliance with data protection requirements. Lawyers experienced in the field of competition law can offer advice.

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