(1) Whoever, while acting with intent or negligently,
1. contrary to section 7 (1) sentence 1 in conjunction with (2) no. 1 or no. 2, advertises to a consumer, by means of a telephone call or using an automatic calling machine, without that consumer’s express consent,
2. contrary to section 7a (1), does not document the consent referred to therein, does not do so correctly, in full or in good time or does not store it or does not store it for at least five years,
3. contrary to section 8 (5) sentence 2 in conjunction with section 6a (1) sentence 3 of the Injunctive Relief Act, does not serve an application referred to therein or does not do so in good time,
4. infringes a statutory instrument as referred to in section 8b (3) sentence 1 in conjunction with section 4f no. 1 or no. 2 of the Injunctive Relief Act or an enforceable order made on the basis of such a statutory instrument, insofar as the statutory instrument makes reference to this provision in relation to a particular offence or
5. contrary to section 8b (3) in conjunction with section 4b (1) sentence 1 of the Injunctive Relief Act, also in conjunction with a statutory instrument as referred to in section 4f no. 3 of the Injunctive Relief Act, does not make a report referred to therein, does not do so correctly, in full or in good time
is deemed to have committed a regulatory offence.
(2) The regulatory offence in the cases referred to in subsection (1) no. 1 may be penalised by imposition of a regulatory fine not exceeding 300,000 euros, in the cases referred to in subsection (1) no. 2 a regulatory fine not exceeding 50,000 euros and in all other cases a regulatory fine not exceeding 100,00 euros.
(3) The administrative authority within the meaning of section 36 (1) no. 1 of the Act on Regulatory Offences in the cases referred to in subsection (1) no. 1 and no. 2 is the Federal Network Agency for Electricity, Gas, Telecommunications, Post and Railway, in all other cases the Federal Office of Justice.
Annex (to section 3 (3))
(Publication source: Federal Law Gazette I 2021, p. 3508–3510)
The following commercial practices are always illegal vis-à-vis consumers:
Misleading commercial practices
1. False statement regarding the signing of a code of conduct
The false statement by an entrepreneur that he or she is a signatory to a code of conduct;
2. Unauthorised displaying of trust marks and the like
Displaying a trust mark, quality mark or equivalent without having obtained the necessary authorisation;
3. False statement regarding the endorsement of a code of conduct
Making the false statement that a code of conduct has an endorsement from a public or other body;
4. False statement regarding recognition by third parties
Making the false statement
a) that an entrepreneur, a commercial practice by that entrepreneur, or goods or services have been approved, endorsed or authorised by a public or private body or
b) that the terms of the approval, endorsement or authorisation have been complied with;
5. Bait advertising without reference to the unreasonableness of stock levels
Making an invitation to purchase goods or services within the meaning of section 5b (1) at a specified price when the entrepreneur does not disclose that he or she has reasonable grounds for believing that he or she will not be able to offer to supply these, or equivalent, goods or services, or to procure such supply, at such specified price for a period which is, and in quantities which are, reasonable; where stocks are available for less than two days, it is incumbent on the entrepreneur to furnish proof of reasonableness;
6. Bait advertising relating to the sale of other goods or services
Making an invitation to purchase goods or services within the meaning of section 5b (1) at a specified price in a situation where the entrepreneur, with the intention of promoting different goods or services instead, then
a) demonstrates a defective example of the goods or services,
b) refuses to show the consumer the goods or services advertised or
c) refuses to take orders for the goods or services or to perform the advertised service within a reasonable time;
7. False statement regarding the time-limited availability of an offer
Making the false statement that certain goods or services will only be available generally or on particular terms for a very limited time in order to elicit an immediate transactional decision from the consumer without the latter having the time and the opportunity to make an informed choice;
8. Change in the language of customer services in the case of contractual negotiations conducted in a foreign language
Making an after-sales service available in a language which is not the language in which the negotiations were conducted before conclusion of the transaction if the language originally used is not an official language of the Member State of the European Union where the entrepreneur is located; this does not apply if the consumer is informed before conclusion of the transaction that such services will be made in a language different from the language originally used;
9. False statement regarding marketability
Making the false statement, or creating the false impression, that goods or services can be sold with legal effect;
10. Presentation of statutory obligations as distinctive feature of an offer
Making the false statement, or creating the false impression, that legally existing rights form a distinctive feature of the offer;
11. Advertorial
Using editorial content to promote goods or services where the entrepreneur has paid for this promotion without such connection being clearly identifiable from the content or by images or sounds;
11a. Covert advertising in search results
Providing search results in response to a consumer’s online search query without clearly disclosing any paid advertisement or payments specifically for achieving higher ranking of goods or services within the search results;
12. False statement of risks to personal safety and security
Making a false claim concerning the nature and extent of the risk to the personal security of the consumer or the consumer’s family if the consumer does not purchase the goods or services offered;
13. Deception regarding commercial origin
Promoting goods or services similar to the goods or services of a particular manufacturer with the intention of deceiving the consumer regarding the commercial origin of the goods or services promoted;
14. Snowball or pyramid scheme
Establishing, operating or promoting a sales promotional scheme requiring the consumer to pay a financial contribution in return for the opportunity to receive compensation solely or at least primarily from the introduction of other participants into the scheme;
15. False statement concerning cessation of business
Falsely claiming that the entrepreneur is about to cease trading or move premises;
16. Claim of increase in the chance of winning in games of chance
Claiming that certain goods or services are able to facilitate winning in games of chance;
17. False statement as to the curing of illnesses
Falsely claiming that goods or services are able to cure illnesses, dysfunction or malformations;
18. False statement regarding market conditions or sources of supply
Giving false information on market conditions or sources of supply with the intention of inducing the consumer to purchase or use goods or services at conditions less favourable than general market conditions;
19. Not awarding advertised prizes
Offering a competition or promotional contest without awarding the prospective prizes or a reasonable equivalent;
20. False advertising as free of charge
Offering goods or services as being ‘gratis’, ‘free’, ‘without charge’ or using a similar expression although costs are to be paid for the goods or services; this does not apply to the unavoidable cost of responding to the offer of goods or services or of collecting or paying for delivery of the goods or of using the services;
21. Misleading as regards order already having been placed
Forwarding marketing material together with a document seeking payment and creating the false impression that the goods or services marketed have already been ordered;
22. Misleading as regards entrepreneurial status
Making the false statement, or creating the false impression, that the entrepreneur is a consumer or is not acting for purposes relating to his or her business, trade, craft or profession;
23. Misleading as regards customer assistance in other Member States of the European Union
Making the false statement, or creating the false impression, that an after-sales service in relation to goods or services is available in a Member State of the European Union other than the one in which the goods or services are sold;
23a. Reselling of event tickets
Reselling event tickets to consumers if the entrepreneur acquired them by using automated means to circumvent any limit imposed on the number of tickets a person can buy or any other rules applicable to the purchase of tickets;
23b. Misleading as regards the genuineness of consumer reviews
Stating that reviews of goods or services are submitted by consumers who have actually purchased or used these goods or services without taking reasonable appropriate and proportionate measures to verify whether the reviews actually originate from such consumers;
23c. False consumer reviews
Forwarding or commissioning false consumer reviews or endorsements by consumers and misrepresenting consumer reviews or endorsements in social media in order to promote goods or services;
Aggressive commercial practices
24. Keeping a consumer on the premises
Creating the impression that the consumer cannot leave certain premises until a contract is formed;
25. Not leaving the consumer’s home despite being requested to do so
While conducting a personal visit to a consumer’s home, ignoring his or her request to leave or not to return, unless seeking out the consumer’s home is justified for the lawful enforcement of a contractual obligation;
26. Illegal persistent solicitations by distance selling means
Making persistent and unwanted solicitations by telephone, fax, email or other means of commercial communication suited to the purposes of distance selling, unless such conduct is justified for the lawful enforcement of a contractual obligation;
27. Preventing enforcement of contractual rights in an insurance relationship
Measures to dissuade the consumer from exercising his or her contractual rights in an insurance relationship by
a) requiring said consumer to produce such documents, on assertion of a claim, as are not needed as proof of that claim or
b) failing systematically to respond to correspondence asserting said claim;
28. Soliciting children
Including in an advertisement a direct exhortation to children to buy the goods or services marketed or to persuade their parents or other adults to do so;
29. Demanding payment of goods or services not previously ordered
Demanding payment for goods or services which have not been ordered but have been supplied or rendered, or demanding the return or safekeeping of goods which have not been ordered; and
30. Information concerning a risk to work or livelihood
Explicitly stating that the entrepreneur’s job or livelihood will be in jeopardy if the consumer does not buy the goods or services;
31. Misleading as regards prizes or winnings
Making the false statement, or creating the false impression, that the consumer has already won, or will win, a prize, or that the consumer will win a prize or other equivalent benefit subject to a specific act if
a) there is in fact no such prize to win or other equivalent benefit or
b) the possibility of winning such a prize or other equivalent benefit is made dependent on payment of a sum of money or incurring costs.
32. Demanding payment in case of unsolicited visits to the consumer’s home on the day of conclusion of a contract
Demanding that the consumer pay for goods or services before the end of the day on which a contract is concluded as part of the conclusion of a contract during an unsolicited visit to the consumer’s home; this does not apply where the consumer owes an amount less than 50 euros.