Representative actions

Pro Rauchfrei is registered as a so-called “qualified institution” with the Federal Office of Justice (link to the register) and the European Commission and can therefore take action against unfair business practices by companies in the interests of consumer protection, in particular through injunctions. In accordance with Section 8 of the Unfair Competition Act (UWG) in conjunction with the provisions of the Injunctions Act (UKlaG), we are authorized to enforce injunctive relief against companies in connection with the consumption of tobacco products both in and out of court.

Which companies are affected?

Companies from the following sectors

  • catering trade
  • event management
  • retail including sales outlets such as petrol stations, kiosks, etc.
  • online trade
  • internet media with unauthorized advertising for tobacco or nicotine-containing consumer products
  • tobacco vending machine operations

who commit violations of the legal requirements of non-smoker protection laws, youth protection and tobacco product regulation or who, as the responsible party, do not prevent such violations or do not take action against them.

Why do we send warning letters?

A warning letter informs the person being warned that they have committed an infringement in terms of unfair competition. This infringement must be remedied (e.g. unauthorized advertising for tobacco products or an unauthorized smoking room) and the risk of a repetition of the same (or a “core similar”) infringement must also be excluded.

A warning must be based on applicable law and prove the infringement/unfair business practices. If this is not possible, it is unsuccessful. The party requesting the cease-and-desist declaration bears the (financial) risk if it misjudges the facts of the case.

In 2023, Pro Rauchfrei issued 34 warnings.

  • 16 of these were successful out of court
  • Judicial clarification was initiated in 16 proceedings, of which
    • 13 interim injunctions were issued without an oral hearing
    • 3 main actions were filed
  • A total of 6 main proceedings were initiated (including cases from 2022), of which
    • 2 were settled without an oral hearing
    • 4 were still pending at the end of the year

Isn’t it enough if I remove the infringement?

No, the attached cease-and-desist declaration must be signed and sent to us within the set period (usually one week). The presumption of the existence of a risk of repetition based on an infringement of competition law can only be dispelled by submitting a cease-and-desist declaration with a penalty clause.

Am I responsible for infringements committed by my employees?

Yes, a claim for injunctive relief can also be asserted against the business owner if the infringing act is committed in a business operation by an employee or agent. In principle, the company owner is also liable for infringements committed by an agent without his knowledge and against his will. Incidentally, this also applies if he was absent for some time due to vacation or other reasons.

The deadline set is too short, what do I do now?

As a rule, the deadline set in the warning letter is sufficient for the employee to respond to the accusation. In justified cases, an extension of the deadline may be granted. A letter by e-mail, fax or post stating the reasons is sufficient for this. If the person being warned does not have time to consult with their own lawyer, for example due to the lawyer’s work overload or absence on vacation, this does not constitute a justified reason for an extension of the deadline according to case law. This also applies to your own absence from work.

What happens if I simply do not respond to the warning?

After the response period has expired, we will either enforce the claim directly in court or summon the responsible managing directors to appear before the conciliation board for competition disputes at the relevant Chamber of Industry and Commerce. The personal appearance of the managing directors before the conciliation board is mandatory if ordered by the board.

In the majority of cases, we enforce our claim in court. This can take the form of a lawsuit or an application for an interim injunction. As a result, a court order for future violations of the type described in the warning will impose fines of up to EUR 250,000, or alternatively imprisonment, or imprisonment for up to six months (up to two years in the event of a repeat offense).

The unsuccessful party will have to pay court and legal fees and reimburse necessary expenses, such as travel or accommodation costs, for their own lawyer as well as for the opposing party. Depending on how much effort is involved in reaching a judgment and whether further instances are sought, the original costs of the warning fee (50 euros in our case plus any costs for register information) can increase considerably.In certain cases, a decision by the conciliation board for competition disputes makes sense. The Unfair Competition Act (UWG) expressly provides for the establishment of out-of-court conciliation boards at the chambers of industry and commerce. The aim of proceedings before the conciliation board for competition disputes is always to reach an amicable agreement. An agreement is concluded as a settlement. If a compromise is not possible, the parties involved can still bring about a court decision. The Chamber of Industry and Commerce in the trader’s district is responsible.

As a rule, we will request that the managing directors be ordered to appear in person, as this is the only way to make a hearing meaningful. Failure to appear despite being summoned may result in a fine of up to 1,000 euros. Of course, there is an opportunity to acknowledge the claim before the hearing. Which cases we bring before the conciliation board depends, among other things, on the subject matter, the company’s previous reaction and the prospects of success.

The procedure before the conciliation board has the advantage for the entrepreneur that, in contrast to court proceedings, it does not incur any procedural fees or legal costs. However, if a settlement is reached in which the cease-and-desist order is recognized, the lump sum for expenses and any travel and accommodation costs incurred by the association must be paid.

Ignoring a warning is therefore never a good solution, as in the interests of fairness to all those affected we are compelled to pursue our claim further.

Isn’t it better for me to deny the infringement first?

Only if you are certain beyond all doubt that the alleged infringement has not been committed in your company. In all other cases, it will probably be quite expensive for you. It is therefore advisable to carefully check the evidence or witness statements submitted in our warning letter and/or have them checked by a lawyer.

I have signed the cease-and-desist declaration and paid the warning fee. Is that the end of the case?

The specific case, yes. However, you have made a binding commitment in the cease-and-desist declaration to exclude repeat cases. Each individual case of culpable infringement of which we become aware can be punished with a contractual penalty to be determined by us and, in the event of a dispute, to be reviewed by the competent court.