Abolition of the „flying jurisdiction” in competition law
On December 2, 2020, the revised provision on local jurisdiction pursuant to Section 14 (2) of the Act against Unfair Competition (UWG) came into force and abolishes the so-called “flying jurisdiction” regarding Internet cases for domestic defendants. The new special regulation of the local jurisdiction of the court is based on the law to strengthen fair competition of November 26, 2020 (BGBI. I. S. 2568, as already announced in the MSP News section from October 15, 2020). The new special regulation applies to lawsuits and indirectly also for the application for a preliminary injunction. The jurisdictions provided for therein are exclusive; therefore no other court can have jurisdiction over the merits of the case, neither by agreement nor by unreasonable negotiation. Thus, the plaintiff´s right of choice in advertising on the Internet, which was previously unrestricted under the UWG and which also included recourse to the court at the place of commission, is not insignificantly curtailed.
- The new provision of Section 14 (2) sentence 1, new version first provides for the general place of jurisdiction of the defendant (previously, the place of jurisdiction of the commercial or independent professional establishment was primarily decisive).
- The plaintiff can still choose to bring an action before the court "in whose district the act was committed" (place of jurisdiction of the act committed or so-called "flying jurisdiction") in accordance with the second sentence of Section 14 (2), new version.
- However, since December 2, 2020 the following restrictions apply in accordance with Section 14 (2) sentence 3, new version:
Thus, in the UWG, the so-called "flying jurisdiction" no longer applies in particular to "legal disputes concerning infringements in electronic commerce or telemedia", unless the defendant has no general place of jurisdiction in Germany. Consequently, in proceedings against domestic competitors, the plaintiff is in principle only entitled to the general jurisdiction of the defendant, which is often unfavorable from the plaintiff´s point of view. In this respect, everything remains the same for foreign competitors.
The term "legal disputes for infringements in electronic commerce or in telemedia" is intended to cover such infringements of rights that are realized exclusively in telemedia and only violate fairness regulations on a purely virtual basis, e.g., through the content of an offer published only online or a purely Internet advertisement.
Consequently, the flying jurisdiction continues to be open at least if an unfair commercial act, such as misleading advertising, did not occur exclusively on the Internet, but at least also demonstrably via other means of dissemination, such as postal mailing, display of advertising material and advertisements in newspapers.
Also not covered by the restriction are constellations in which, in addition to UWG claims, there are also claims under trademark or design law. The situation is similar in the case of competing claims under copyright, utility model or patent law, according to which a court with local jurisdiction under these laws can also decide on UWG issues by virtue of the factual connection, at least insofar as the same subject matter of the dispute is given.
As a conclusion, it remains to be noted that when taking action against domestic competitors due to competition violations that only take place on the Internet, only the court at the competitor's registered office has jurisdiction. If the competition infringement is committed by several persons with registered offices in different places (e.g. GmbH and CEO), it can lead to a splitting of lawsuits.