Judgment of 3 April 2019 -
BVerwG 8 C 4.18ECLI:DE:BVerwG:2019:030419U8C4.18.0
Please note that the official language of proceedings brought before the Federal Administrative Court of Germany, including its rulings, is German. This translation is based on an edited version of the original ruling. It is provided for the reader’s convenience and information only. Please note that only the German version is authoritative. Page numbers in citations have been retained from the original and may not match the pagination in the English version of the cited text. Numbers of paragraphs that have completely been omitted in the edited version will not be shown.
When citing this ruling it is recommended to indicate the court, the date of the ruling, the case number and the paragraph: BVerwG, judgment of 3 April 2019 - 8 C 4.18 - para. 16.
No standing to bring a representative action in cases of consumer advice - also - in the economic interest of third parties
1. Consumer information and advice is not commercial within the meaning of section 4 (2) first sentence UKlaG if it is provided exclusively in consumers' interests and does not serve economic interests of the association performing the task or of third parties.
2. An association whose consumer information and advice aims to gain clients for a particular law firm interlocked by mutual interests with that association carries out this activity with a third-party economic interest and thus commercially within the meaning of section 4 (2) first sentence UKlaG.
Sources of law
Basic Law GG, Grundgesetz articles 3 (1), 9 Injunctive Relief Act UKlaG, Unterlassungsklagengesetz sections 4 (1) and (2) first sentence no. 3 General Terms and Conditions Act, old version AGBG a.F., AGB-Gesetz, alte Fassung section 22a (1) and (2) Directive 2009/22/EC article 3 (b), recitals 10 et seq. Directive 2011/83/EU article 23 (2) (b), recital 56
Summary of the facts
The claimant association requests registration in the list of qualified institutions pursuant to section 4 of the Injunctive Relief Act (UKlaG, Unterlassungsklagengesetz). It was founded by nine natural persons in 2002, of whom five - four lawyers and a legal assistant - were members of the law firm S., which specialises in banking and capital market law. Section 2 (2) of the claimant's statutes defines the association's purpose as being "to promote consumer protection by means of providing consumer advice and information in the field of closed fund models and other capital investment models". Under section 2 (3) first and second sentences of the statutes "[the association] understands itself as being a consumer protection association. It is a point of contact for investors whose capital investments have become non-performing", and, under section 2 (4) of the statutes, operates altruistically without primarily serving its own economic purposes. Section 8 (3) of the statutes reserves the right to elect the board of the association for the founding members of the association as a "special membership right".
In June 2010, the claimant applied to be registered in the list of qualified institutions pursuant to section 4 (2) UKlaG. The defendant rejected the application since appropriate, information and advisory activities independent of third-party commercial interests was not guaranteed. The claimant's objection was unsuccessful. The Cologne Administrative Court (Verwaltungsgericht) dismissed the action filed against it. The Higher Administrative Court (Oberverwaltungsgericht) dismissed the claimant's appeal on points of fact and law. It ruled that on the basis of the association's previous activities, it did not appear certain that the claimant would fulfil its statutory tasks, particularly the provision of non-commercial information and advice for consumers, also in the future effectively and appropriately on a permanent basis within the meaning of section 4 (2) first sentence UKlaG. Consumer information and advice that served an association's own economic interests or that of third parties to a significant extent were not appropriate. The requirement that information and advisory activities be provided non-commercially precluded the registration not only of so-called associations issuing warning letters (Abmahnungen) or mixed associations. The legislative history and its spirit and purpose - preventing conflicts of interest between consumer interests on the one hand and economic interests of the association or third parties on the other - excluded the registration of any association that does not appear to ensure that consumer advice and information is uninfluenced by outside economic interests. The claimant was such an association because, to a significant extent, its information and advisory activities served the economic interests of the law firm S.
With its appeal on points of law, the claimant asserted that section 4 (2) first sentence UKlaG, like the previous version of the provision, was intended to exclude from registration associations issuing warning letters or mixed associations. Neither the legislative materials nor the systematic connection of the provision gave rise to stricter requirements for registration. In particular, it was not necessary that information and advisory activities should be completely devoid of any economic interest. Thus, the claimant's cooperation with the law firm S. did not preclude registration. It served consumers' interests and did not lead to the risk of any conflicts of interest. The lower instance's assumptions to the contrary were not binding to an appeal on points of law since they were based on an incorrect interpretation of the provision.
9 The appeal on points of law is unfounded. The Higher Administrative Court correctly assumed that the claimant was not entitled to registration in the list of qualified institutions under section 4 (1) and (2) first sentence UKlaG in the version promulgated on 27 August 2002 (Federal Law Gazette (BGBl., Bundegesetzblatt) I p. 3422, 4346), last amended by the Act of 17 July 2017 (BGBl. I p. 2446) (section 137 (1) of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung)).
10 Under section 4 (1) UKlaG, associations having legal capacity whose statutory tasks include safeguarding consumers' interests by providing non-commercial information and advice are registered as qualified institutions in accordance with section 4 (2) first sentence UKlaG upon application if they have at least three associations operating in the same range of task or at least 75 natural persons as members (no. 1), if they have existed for at least one year (no. 2) and if on the basis of their previous activities, it appears to be certain that they will fulfil their statutory tasks also in the future effectively and appropriately on a permanent basis (no. 3). The Higher Administrative Court rightly stated that the last requirement had not been met.
11 Section 4 (2) first sentence UKlaG not only requires it to be - legally - incumbent on associations under their statutes to safeguard consumers' interests by providing non-commercial information and advice. Under no. 3 of the provision, associations must also - actually - have appropriately fulfilled this statutory task appropriately and effectively on a permanent basis, so that on grounds of these activities, fulfilment of these tasks also appears to be certain in the future. This already follows from the wording of the provision itself. It requires a prognosis and determines the association's previous activities as its basis. The words "also in the future" underline that permanently appropriate and effective non-commercial consumer information and advice must already have been provided in the past. The wording that the same activity must appear to be "certain" on this basis in the future specifies the standard for the prognosis. It would not be achieved if, on the basis of the association's previous activities, there was doubt as to the future permanent appropriate and effective provision of non-commercial consumer information and advice.
12 1. Information and advisory activities provided exclusively in the interests of consumers and not serving commercial interests of the association or of third parties are non-commercial. This results from the legislative history of section 4 (2) first sentence UKlaG, the deriving regulatory purpose and the systematic connection of the provision.
13 a) The legislative history substantiates a dual purpose of the provision. Firstly, to extend the standing to bring a representative action (Verbandsklagebefugnis) for the effective enforcement of consumer rights beyond classic consumer associations to include other associations, which like classic consumer associations, provide consumer information and advice in the collective interests of consumers. Secondly, it is intended to preclude abuse of this standing by associations whose activities are not oriented exclusively towards the collective interest of consumers, but - at least partly - serve the economic interests of the association or of third parties.
14 Section 4 UKlaG derives from section 22a (1) and (2) of the General Terms and Conditions Act (AGBG, AGB-Gesetz), which linked eligibility for registration with the statutory task of safeguarding consumers' interests by providing information and advice. In the course of integrating this provision in section 4 UKlaG, old version, (see article 3 of the Act to Modernise the Law of Obligations (Schuldrechtsmodernisierungsgesetz) of 26 November 2001, BGBl. I p. 3138) this requirement for registration was supplemented by the characteristics "non-commercial and not only temporary" and by the prerequisite that associations had to "have existed for at least one year and, on the basis of their previous activities, offer a guarantee of the appropriate fulfilment of tasks". The explanatory memorandum outlines the need for a more precise provision by reference to the abuse of standing to bring a representative action by associations issuing warning letters. This is seen as merely one example of associations that do not actually or at least do not appropriately perform consumer protection despite having such a task assigned to that effect in their statutes. The legislature's aim in supplementing the constituent elements of the provision was to preclude any abuse and to ensure that only associations are registered that actually provide the consumer protection incumbent on them under their statutes actively, seriously and as appropriately as classic consumer associations (see the recommendation for a decision and the report by the Committee on Legal Affairs of the German Bundestag of 9 October 2001, Bundestag printed paper (BT-Drs., Bundestagsdrucksache) 13/7052 p. 208).
15 The recast version of section 4 (2) UKlaG by article 3 no. 5 (b) of the Act of 17 February 2016 (BGBl. I p. 233) retained this objective and specified the actual requirement for registration to regulate them more clearly and understandable (see the explanatory memorandum of the draft act of the Federal Government of 15 April 2015, BT-Drs. 18/4631 p. 24). The explanatory memorandum underlines the need to consistently fulfil the statutory obligation to provide non-commercial consumer information and advice in the association's actual performance of its tasks. It clarifies explicitly that information and advice must be provided exclusively in consumers' interest and may not serve the association's own economic interest or that of third parties (BT-Drs. 18/4631 p. 25).
16 b) A systematic interpretation leads to the same result. Under section 4 (2) second sentence UKlaG it is irrefutably assumed that consumer organisations and other consumer associations that receive public resources fulfil the requirements for registration. Thus, classic consumer associations that are committed to protecting collective consumer interests are the model of associations eligible for registration. Section 4 (2) first sentence UKlaG extends and limits eligibility for registration to associations which, following the model of these classic associations, provide consumer information and advice exclusively serving the collective interests of consumers.
17 c) The regulatory purpose, backed by the legislative history and the systematic connection, requires an interpretation according to which commercial consumer information and advice does not exist only when there is commercial activity, but already when the information and advice are not exclusively provided in the interest of consumers as specified in the statutes or in fact. This is not only the case for mixed associations which, under their statutes, already act in the interests of consumers as well as in the economic interests of the association, its members or third parties (see Federal Court of Justice (BGH, Bundesgerichtshof), judgments of 14 October 1982 - I ZR 81/81 - (...) para. 11 et seq., 14 and of 12 July 1984 - I ZR 37/82 - (...) para. 13). Nor does the ground for refusal of registration apply only to associations where, for other reasons, such as institutional links, conflicts between the interests of consumers and the interests of the association or third parties are apparent (see BGH, judgment of 19 May 1988, - I ZR 170/86 - (...) para. 23 et seq.). Nor are associations eligible for registration which, while having a statutory obligation to represent consumer interests by providing non-commercial information and advice, do not actually fulfil this task exclusively in the interests of consumers, but, at least in part, do so in the economic interests of the association or third parties.
18 The contested judgment correctly assumes this specification of the requirements for registration. Particular considerations of the judgment that declare a significant influence of economic interests of the association or third parties to be inadmissible are to be understood in the context of the findings of the Court of Appeal on the interlocking of the claimant with the law office S. and related subsumption considerations. These considerations do not aim to relativise - incorrectly - the legal requirements for providing non-commercial information and advice for consumers. The question as to the extent to which other activities taken by the association in its own economic interests are compatible with this does not need to be discussed here. In any case, consumer information and advice may not itself serve the economic interests of the association or of third parties, but must solely serve the collective interest of consumers. If it, however, aims to gain economic advantages for third parties, registration is precluded.
19 d) This interpretation of the requirement for non-commercial consumer information and advice is compatible with constitutional and EU law.
20 The scope of protection of the freedom of association (article 9 of the Basic Law (GG, Grundgesetz)) is not affected because the claimant can operate in accordance with its statutes even without registration under section 4 (1) and (2) first sentence UKlaG. Giving more favourable legal treatment to associations that provide information and advice for consumers exclusively in their interest also conforms with the principle of equality (article 3 (1) GG). It is objectively justified by the fact that safeguarding consumers' interests in this way is a more suitable means of securing the regulatory purpose of guaranteeing effective enforcement of consumers' rights than information and advice that serves - at least partly - an association's own economic interests or the interests of third parties.
21 Section 4 (2) first sentence UKlaG is in conformity with EU law. Article 3 (b) and the recitals 10 et seq. of Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers' interests (OJ L 110 p. 30) leave it to national law to lay down the criteria for the standing of consumer associations. The persons or organisations having a legitimate interest in protecting consumers within the meaning of article 23 (2) (b) of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ L 304 p. 64) are also to be determined in accordance with national law under recital 56 of this Directive. The fact that section 4 (2) first sentence UKlaG requires an activity to be non-commercial within the meaning of information and advice provided exclusively in the interest of consumers is not in conflict with the principle of effectiveness (effet utile). Rather, this requirement increases the efficacy of EU law on the effective enforcement of consumer rights because it promotes the consistent safeguarding of consumer interests without the influence of the association's or third-party economic interests.
22 2. The claimant does not provide non-commercial consumer information and advice within this meaning. (…)