The new SLK – No obligation to indicate the CO2 emission or consumption from a competition standpoint

a) “Model” within the meaning of § 5 Abs. 1 Car EnVKV under § 2 No.. 15 Car EnVKV the trade name of a vehicle, consisting of factory brand, Type and, where appropriate variant and version of a passenger car. This does not conflict, that pursuant to § 2 No.. 6 Car EnVKV in conjunction with Article. 2 No.. 6 Directive 1999/94 / EC then, if a model under several variants and / or versions are summarized, are of value for CO2 emissions of this model based on the variant or version with the highest official CO2 emissions indicate within this group.

b) In Annex IV subparagraph 3 Directive 1999/94 / EC included provision, after which the fuel must not be specified, if it is referenced in the promotional literature only on the make, and not to any particular model, does not justify the implication, that in such a case, after all, the CO2 emissions must be specified.

JUDGMENT BGH I ZR 119/13 from 24. July 2014 – The new SLK

UWG § 4 No.. 11, § 5a Abs. 2 and 4; § car EnVKV 2 No.. 6, 15 and 16, § 5 Abs. 1 and Section I of Annex 4; Directive 1999/94 / EC Art. 2 No.. 6, 11 and 12, Art. 6 Abs. 1 and Annex IV

BGH, Judgment of 24. July 2014 – I ZR 119/13 – OLG Stuttgart
LG Stuttgart
Corrected by decision
from 22. January 2015
Lead Inger
Court clerks
as clerk of
the office
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The I. Civil Division of the Federal Court from the hearing 24. July 2014 Presiding Justice Prof. Dr. Büscher, the judges Prof. Dr. Schaffert, Dr. Kirchhoff, Dr. Koch and the judge Dr. Schwonke
hereby:
An appeal from the judgment of the 2. Civil Division of the Higher Regional Court Stuttgart-by 13. June 2013 is at the expense of the applicant back-pointed.
As of right
Facts:
The defendant is the manufacturer of the vehicle Mercedes-Benz SLK. It advertised this vehicle in the German edition of the magazine “falstaff” 03/11 (June-August 2011), to make without information on its fuel consumption and CO2 emissions.
The applicant is a qualified facilities in the list according to § 4 UKlaG registered environmental and consumer protection association. It tracks down their satellite tion among other purpose, to promote the enlightening consumer advice and order-mental protection in Germany.
According to the applicant, the defendant with the Advertising in the magazine “falstaff” 03/11 their are acted contrary from the car energy consumption labeling regulation resulting obligation, ensure as a manufacturer of new current passenger-gen, that are specified in advertisements for these vehicles with CO2 emissions.
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With its raised after warning application, the applicant has bean carries,
1. unspecified order the defendant under penalty order means, to advertise in the business for purposes of competition for new passenger cars of the Mercedes-Benz SLK in publications, without information on the official CO2 emissions from these vehicles (within the meaning of § 2 No.. 6 Car EnVKV) to make;
2. Order the defendant, the applicant Abmahnkosten in the amount of 214 € to refund, with interest.
The defendant challenged the action. It argued, the information on the CO2 levels are at least according to the version dispensable turned-sen, in which the plant 4 (to § 5) Section I, paragraph 3 the car energy consumption labeling regulation to 30. November 2011 was in force.
The district court dismissed the action (LG Stuttgart, WRP 2012, 751). The appointment of the applicant has had no success (OLG Stuttgart, GRURRR 2014, 71 WRP = 2013, 1231).
With their authorized by the Court of Appeal Revision, their rejection of the defendant applied, pursues the applicant form of order sought further.
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Reasons for the Decision:
I. The Court of Appeal has considered the application as unfounded. There has executed:
The advertising complained of is not in accordance with §§ 3, 5, 5a UWG still under §§ 3, 4 No.. 11 UWG in conjunction with §§ 1, 5 Car EnVKV unfair. The provisions of car energy labeling regulation with regard to the informa-tion obligations on carbon emissions are indeed market conduct rules within the meaning of § 4 No.. 11 UWG, the breach of which would affect the interest of consumers also felt. But in principle no dispute existed between the parties about, that CO2 emissions are not specify, when will only advertised for a trade mark or of a type and would give it any indication of engine. That is according to the extent offered formal approach in the present case. This approach is correct even in this respect,, that the regulation in plant 4 (to § 5) Section I, paragraph 3 Car EnVKV not negligible from the provisions of Annex IV subparagraphs rate 3 Directive 1999/94 / EC on the allocation of Verbraucherinformatio-nen on fuel economy and CO2 emissions in respect of the marketing of new cars per-sons differed.
II. The actions against these attacks assessment of the revision fail.
1. The applicant is the alleged injunction pursuant to §§ 8, 3, 4 No.. 11 UWG in conjunction with the provisions of car energy consumption labeling regulation nor as to the extent of their gel-ture declared claim pursuant to § 12 Abs. 1 Set 2 UWG to reimbursement of the cost-Abmahn. The defendant has the facts alleged by the plaintiff advertising for that reason not against the car energy consumption labeling ordinance violations-Shen, because this advertising other than the advertising on the merits “Gallardo Spy-der” (vgl. BGH, Judgment of 4. February 2010 I ZR 66/09, IIC 2010, 852 WRP =
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2010, 1143) not as in § 5 Abs. 1 and Section I of Annex 4 the car EnVKV has provided based on a given passenger car model.
a) That § 5 Abs. 1 Car EnVKV, manufacturers and distributors, use the advertising rules, ensure, that there information on the official specifi-acoustic CO2 emissions from the models of new passenger cars in accordance with Section I of Annex 4 be made of this Regulation. After this section I are referred to in the promotional vehicle model Anga-ben to make on the official specific CO2 emissions in the combined test cycle (No.. 1 Set 1), the information easily comprehensible-lich also on superficial, must be clearly legible and also highlighted as the main part of the Who-bebotschaft (No.. 2). Advertised for several models, are then either the values ​​for each model or it is the range between the worst and the best official specific CO2 emissions in the combined test cycle specify (No.. 1 Set 2). According to Section I, No.. 3 the plant 4 the car EnVKV is an indication of the CO2 values ​​are not required, if not for a bestimm-th model, but is merely promoted the make.
aa) The to by the applicant with the head of claim 1 alleged Verlet tion injunction is only then justified, if the beanstan-end to advertising on the defendant already infringe on the date of their publication in the summer 2011 violated applicable provisions of the car Ener-gieverbrauchskennzeichnungsverordnung and therefore was anti-competitive (st. Rspr.; vgl. only BGH, Judgment of 9. June 2011 – I ZR 17/10, IIC 2012, 188 Rn. 11 WRP = 2012, 975 – Computer image; Judgment of 25. April 2012 – I ZR 105/10, IIC 2012, 1279 Rn. 16 WRP = 2012, 1517 – THE BIG PUZZLE BOOK, per-Weil mwN). Accordingly, in the assessment of this claim, the version of the section I, paragraph 3 the plant 4 for car EnVKV berücksichti-gen to, up to 30. November 2011 has been considered. Thereafter, an indication of the CO2 levels was not even required, if only advertised for a type WUR-de and no details were provided for the motorization. This scheme is also for the reimbursement of Abmahnkosten according to the order sought to 2 significantly, for the matters solely on the legal situation at the time of pronounced by the applicant warning (vgl. BGH, IIC 2012, 188 Rn. 48 -
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Computer image; BGH, Judgment of 31. More 2012 – I ZR 45/11, IIC 2012, 949 Rn. 32 WRP = 2012, 1086 – Abusive penalty, each with further references).
bb) Regardless, there was and is in § 5 Abs. 1 Car EnVKV be-agreed and in Section I of Annex 4 hereto closer concretized obligation to indicate the official CO2 emissions under both the version, in those provisions to 30. November 2011 have been considered, and after version, which has since been, only in case of advertising for certain models newly-it Cars.
This rule is consistent with the in kind. 6 Abs. 1 and Annex IV of Directive 1999/94 / EC regulation contained in agreement. According to Art. 6 Abs. 1 Directive 1999/94 / EC, Member States shall ensure, that all promotional literature contains the official specific CO2 emission data of the passenger car models ge accordance with Annex IV. This in Annex IV subparagraph 1 Set 1 Directive repeated determination is in Annex IV subparagraph 1 Set 2 No.. 1 and 2 concrete of the Directive in, that the detail of at least legible, no less prominent than the main part of the Werbebot-economy and even on superficial should be easy to understand.
b) That § 2 No.. 15 Car EnVKV is “Model” the purposes of this Regulation, the trade name of a vehicle, consisting of factory brand, Type as well as ge-enter if variant and version of a passenger car. This definition is in the matter of the kind in. 2 No.. 11 defined in Directive 1999/94 / EC contained in agreement, according to which the expression “Model” the commercial description of the make, denotes the type and optionally the variant and version of a per-sons virtue carriage. After the not challenged on appeal the findings of the District Court of the advertised there with by the applicant beanstan-Deten advertising brochure passenger cars “Mercedes-Benz SLK” about the “SLK 200″, the “SLK 250″ and “SLK 350″ Several variants or. Versio-nen and thus several models. An obligation to show pursuant to § 5 Abs. 1 and Section I of Annex 4 the car EnVKV copy of the information would then only be passed to the defendant, when some of the model “Goods-des-Benz SLK 200″ had recruited. That's not the challenged advertising
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Fall, the only general to the vehicle “Mercedes-Benz SLK” has the object of, without referring to a concrete model for the purposes of car energy consumption Signing-voltage regulation.
c) The foregoing shall not preclude, that pursuant to § 2 No.. 6 Car EnVKV in conjunction with Article. 2 No.. 6 Directive 1999/94 / EC then, when are grouped under a Mo-dell several variants and / or versions, are of value for CO2 emissions of this model based on the variant or version with the highest official CO2 emissions indicate within this group (aA OLG Frankfurt, Judgment of 10. More 2012 6 You 81/11, juris Rn. 13 f. since in view of the 1. December 2011 current version of the car Energy Consumption Labelling). These two provisions are in accordance with § 2 No.. 16 Car EnVKV in conjunction with Article. 2 No.. 12 Directive 1999/94 / EC in relation to Council Directive 70/156 / EEC on the approximation of the laws of the Member States relating to the type-approval of motor vehicles and motor vehicle-trailer (vgl. BGH, IIC 2010, 852 Rn. 18 – Gallardo Spyder).
According to Art. 2 Indent 7 Directive 70/156 / EEC, as amended by the means-DIRECTIVE 92/53 / EEC as amended “Type” a vehicle, that they are vehicles of the same class of vehicle, not distinguish the features in at least the essential respects specified in Annex II to this Directive (Set 1), wherein a type of vehicle from several variants and versions may exist (Set 2; ECJ, Judgment of 13. July 2006 C83/05, ECR. 2006, I6799 Rn. 5 Voigt [to the extent not in NJW 2006, 2539]). For the purposes of category M 1, ie for power-vehicles designed to carry more than eight seats in addition to the Fah-rer (vgl. Appendix II A 1 Directive 70/156 / EEC), comprises a variant of a driving tool type in accordance with Annex II B 1 Subparagraph 2 Indent 5 and 6 Vehicles intra-half of one type, in which the differences in the motor performance is not more than 30% be, that is, the highest performance, the lowest by no more than the greater than 1.3 times and the capacity differences is not more than 20% be, that is, the largest displacement exceeds the smallest is not more than 1.2 times.
This matching rules are specified in Art. 3 No.. 17 in conjunction with Annex II A, subparagraph 3 and Annex II B 1 Subparagraph 2 Indent 5 and 6
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Directive 2007/46 / EC establishing a framework for the approval of motor vehicles and their trailers, and of systems, Contain components and separate technical units intended for such vehicles. These best immunogen according to art. 49 Abs. 2 and the correlation table in Annex XXI of Directive 2007/46 / EC, which, according to Article 50 on 29. October 2007 entered into force, taken the place of the relevant provisions of Directive 70/156 / EEC. After that CO2 emissions can occur in a vehicle type due to differences in engine performance or capacity to varying degrees. This the in § 2 No.. 6 Car EnVKV in connec-tion with nature. 2 No.. 6 Directive 1999/94 / EC contained regulation bill. However, the-se rules do not allow any conclusion to be drawn, what is meant by a model within the meaning of § 5 Abs. 1 and Section I of Annex 4 the car EnVKV is to understand.
2. The revision has taken the view, No Section I. 3 the plant 4 go to the car energy consumption labeling regulation so far beyond the Directive 1999/94 / EC, as they derogation from Annex IV subparagraph 3 this guideline-never consider the specification of CO2 values ​​also dispensable, if not for a specific model, but will only promoted the make. This can not be accepted.
The Annex IV to Directive 1999/94 / EC is linked to the way in. 6 Abs. 1 this Directive contained in regulation, which in turn presupposes related to certain passenger-car models Advertising. Which in its first subparagraph 3 containing ne determination, after which the fuel must not be specified, if it is referenced in the promotional literature only on the make, and not to any particular model, serves merely states the clarification. She does not justify the implication, that in such a case, the CO2 emissions must be angege-ben. This is all the more reason, because it is not clear, what value or range of values ​​should be specified in such a case.
3. The contested by the applicant Advertising breach by the project-the statements not to information obligations, the defendant after the
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Had to meet European Union law. It is therefore not to be misleading within the meaning of § 5 Abs. 2 and 4 To see UWG.
4. After all, a reference to the Court of the European Union, according to Article. 267 Abs. 3 Does not cause the TFEU. The correct application of the legislation at issue in the dispute provisions of Union law is so obvious, that in-insofar as there is no room for reasonable doubt (vgl. ECJ, Judgment of 6. October 1982 287/81, ECR. 1982, 3415 Rn. 13 to 16 = NJW 1983, 1257 C.I.L.F.I.T.; Judgment of 11. September 2008 C428/06, ECR. 2008, I6747 = EuZW 2008, 757 Rn. 42 f. Rioja UGT ua).
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III. Thereafter, the Court of Appeal has considered the lawsuit as a result rightly considered un-justified. The revision of the applicant is therefore the cost implications of § 97 Abs. 1 ZPO rejected.
Büscher Schaffert Kirchhoff
Cooking Schwonke
Lower courts:
LG Stuttgart, Decision of 04.01.2012 – 40 The 72/11 KFH -
OLG Stuttgart, Decision of 13.06.2013 – 2 You 12/12 -
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Bundesgerichtshof
DECISION
I ZR 119/13
from
22. January 2015
in the case of
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The I. Civil Division of the Federal Court on 22. January 2015 Presiding Justice Prof. Dr. Büscher, the judges Prof. Dr. Schaffert, Dr. Kirchhoff, Dr. Koch and the judge Dr. Schwonke
decided:
The judgment of 24. July 2014 is due to an apparent inaccuracy in accordance with § 319 Abs. 1 Code of Civil Procedure as follows corrected:
In paragraph 4 after the first comma, the words “to refrain from,” inserted.

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