"Overall, the mere fact that the creditor of a contractual penalty clause no longer has standing to sue at the time the penalty is triggered means that the subsequent assertion of a contractual penalty must be deemed an abuse of rights. Insofar as the Senate expressed a differing opinion on this point in its decision of September 24, 2024—9 U 258/24—it does not adhere to that view.”
The Higher Regional Court of Koblenz clarifies that the assertion of a contractual penalty is generally an abuse of rights if the creditor no longer had standing to sue at the time of the breach. A further case-by-case assessment is not required in such cases.
The decision of the Higher Regional Court of Koblenz addresses a highly relevant scenario in competition law: the enforcement of contractual penalties arising from cease-and-desist agreements by associations whose standing to sue has subsequently lapsed. The central question is whether—and under what conditions—a creditor may continue to rely on an existing promise of a contractual penalty despite the loss of its right to assert the claim.
The situation had been clearly clarified by case law of the Federal Court of Justice (BGH) when the right to assert a claim had lapsed due to a change in the law. In the present case, however, the issue concerned a situation in which the creditor was an association that was no longer registered on the list of qualified entities under Section 8c of the Unfair Competition Act (UWG). Eligibility to assert a claim under the UWG requires that such registration have been in place for several years. If this eligibility ceases—either because the Federal Office of Justice revokes the association’s registration or because the association voluntarily relinquishes it—the question arises as to the implications for cease-and-desist undertakings previously given by debtors should the debtor commit a violation.
Introduction
The starting point for the legal assessment is the classification of the defense of abuse of rights. The court clarifies that the assessment is not based on the special statutory provisions of Section 8c of the UWG, but rather on the general principles of good faith pursuant to Section 242 of the BGB. Accordingly, the decisive factor is whether the specific exercise of a right appears to be contrary to good faith, taking all circumstances into account. In doing so, the Senate draws on established Supreme Court case law and identifies the relevant categories of abuse of rights, in particular the absence of a legitimate self-interest worthy of protection and the misuse of contractual rights for purposes contrary to their intended purpose.
At the heart of the decision is the application of the Federal Court of Justice’s so-called “Altunterwerfungs” case law to the facts of the present case. According to this case law, invoking a contractual penalty clause may be inadmissible if the creditor clearly no longer has a statutory claim for injunctive relief. The contractual penalty serves, functionally, to secure this claim for injunctive relief. If the authority to enforce the claim in court ceases to exist, the contractual penalty clause also loses its legitimate basis.
The Senate attaches particular importance to the fact that the loss of standing to sue not only opens the possibility of terminating the cease-and-desist agreement but also calls into question the subsequent enforcement of contractual penalties. The decisive factor here is the legislative intent: injunctive relief claims under competition law may only be pursued by the authorities authorized to do so. This intent would be undermined if an association that no longer has standing to sue could nevertheless continue to assert contractual penalties arising from earlier compliance agreements.
The court further clarifies that, for the purpose of establishing an abuse of rights, the reasons for the loss of standing are irrelevant. The sole determining factor is that such standing no longer existed at the time of the alleged infringement and that this circumstance was readily apparent. In this scenario—unlike in other cases under Section 242 of the German Civil Code (BGB)—there is no need for a comprehensive case-by-case assessment or the presence of additional abusive circumstances.
Of particular practical relevance is the Senate’s explicit clarification that the mere loss of standing to sue is sufficient in itself to establish an abuse of rights. This significantly lowers the threshold for raising the defense of abuse of rights while simultaneously creating legal certainty. In the future, companies will be able to defend themselves against claims for contractual penalties with a greater likelihood of success if the claimant was no longer authorized to pursue competition law violations at the relevant time.
Finally, it should be emphasized that, based on our arguments in both instances, the Higher Regional Court of Koblenz has expressly departed from its earlier case law in this regard. While the Senate had taken a more nuanced view in a 2024 decision, it now expressly aligns itself with the Federal Court of Justice’s line of reasoning and consistently adopts its principles.
The decision thus aligns with current developments in case law, which are tightening the requirements for associations’ standing to sue under competition law while simultaneously consistently linking their contractual enforcement options to this standing. In practice, this significantly strengthens the defense of improper exercise of rights in cases where the right to bring a claim has subsequently lapsed.
The text of the Higher Regional Court’s ruling—with the most important passages highlighted
Case No.:
9 U 1126/25
1 HK O 2/25 Regional Court of Koblenz
Higher Regional Court of Koblenz
IN THE NAME OF THE PEOPLE
Judgment
In the legal dispute
D
- Defendant, Counterclaimant, and Appellant -
Legal Representatives: Rechtsanwälte Dr. Caspers, Mock & Partner mbB,
Johann-Peter-Frank-Straße 2, 56070 Koblenz
v.
Consumer Protection Association
- Plaintiff, Counter-Defendant, and Respondent on Appeal -
Legal Representative:
regarding a contractual penalty arising from a cease-and-desist declaration (UWG)
The 9th Civil Division of the Higher Regional Court of Koblenz, composed of Presiding Judge S of the Higher Regional Court, Judge H of the Higher Regional Court, and Judge C of the Higher Regional Court, having heard the oral argument on February 3, 2026, hereby rules as follows:
1. Upon the defendant’s appeal, the judgment of the 1st Chamber for Commercial Matters of the Regional Court of Koblenz dated October 10, 2025—Case No. 1 HK O 2/25—is amended and, with respect to points 1 through 3 of the operative part, restated as follows:
The complaint is dismissed. With regard to the counterclaim, it is hereby determined that the contracts between the parties established by the cease-and-desist declarations under competition law dated April 26, 2017 (transmitted by fax on April 27, 2017, Ref. No. 1DT037117) and September 25, 2019 (Ref. No. 1DT016319) between the parties were effectively terminated as of March 2,2023, and that the plaintiff is not entitled to any claims for injunctive relief against the conduct described in the aforementioned cease-and-desist declarations, nor to any contractual penalties in the event of a culpable breach committed after March 2, 2023.
2. The plaintiff shall bear the costs of the first-instance proceedings and the appeal proceedings.
3. The judgment is provisionally enforceable.
4. An appeal to the Supreme Court is not permitted.
Reasons:
I.
The plaintiff was listed in the register of qualified trade associations pursuant to Sections 8(3)(2) and 8b of the Unfair Competition Act (UWG) from January 1, 2011, to January 21, 2021. In this action, he is seeking payment of a contractual penalty from the defendant based on two contractual penalty agreements.
The defendant is a subsidiary of Z, a medium-sized, family-run group. It operates an online store at the URL https://www.d.de, through which it offers, in particular, various G……… creations, as well as other gift ideas, such as sparkling wine and spirits.
As early as April 26, 2017, the defendant issued a cease-and-desist declaration to the plaintiff, in which it undertook, among other things, to refrain from advertising prepackaged food products in the course of business without indicating the allergens they contain and/or without specifying the alcohol content and/or without providing the name or business name and address of the responsible food business operator. For further details, please refer to Exhibit K7.
Furthermore, due to a recent violation of information requirements, the defendant issued a cease-and-desist declaration on September 25, 2019, in which it undertook, among other things, to refrain from offering consumers, in the course of business for competitive purposes, the conclusion of distance sales contracts concerning prepackaged foodstuffs—in particular sparkling wine, wine, and beverages— that contain wine, a.) without stating, in accordance with Art. 9(1)(h) of the Food Information Regulation (LMIV), the name or business name and address of the responsible food business operator as required by Art. 8(1) of the LMIV, and/or b.) without stating the alcohol content in accordance with Art. 9(1)(k) of the LMIV, in each case in a clearly visible location, clearly and legibly. For each instance of a culpable violation, the defendant agreed to pay an appropriate contractual penalty of no less than 5,100 euros, the amount of which is to be determined by the plaintiff and the reasonableness of which may be reviewed by the competent court. For further details, please refer to Exhibit K 10. The plaintiff accepted the defendant’s declaration of undertaking to cease and desist, and the parties agreed on the payment of a contractual penalty by the defendant in the amount of 7,500 euros.
On February 13, 2023, the defendant advertised the following three products in its online store: G Sparkling Wine 0.2 I, Tasting Set 6x 2cl Fine Spirits, and H Gift Box. Excerpts from the advertisement are as follows:
[No image shown here]
In the online listings for the three products, there was no indication of the names and addresses of the responsible food business operators. Furthermore, for the product “G Carte Blanche Sekt 0.2 I,” there was no information regarding the alcohol content or the allergens it contained.
In a letter dated February 16, 2023, the plaintiff unsuccessfully demanded that the defendant pay a contractual penalty of 24,500 euros for seven alleged violations of competition law.
The defendant terminated the cease-and-desist agreements dated April 26, 2017, and September 25, 2019, by letter dated March 2, 2023, on the grounds that the plaintiff had lost standing to sue, and raised the defense of improper exercise of legal rights.
The plaintiff argued at the trial court that he had standing to sue because the contractual penalty agreements at issue here were entered into in 2017 and 2019—and thus at a time when he was still listed among the qualified entities under Section 4 of the UKlaG. The termination of the contractual penalty agreement was not valid. The determination of the contractual penalty was free from any error of discretion and did not constitute an abuse of rights. In any case, there were five violations, without it being necessary to assume a single course of conduct. The plaintiff was entitled to consider the involvement of his legal counsel necessary, since the demand for payment had been unsuccessful.
There is no legal interest in the counterclaim.
After the plaintiff initially sought payment of 24,500 euros in his complaint, he partially withdrew the complaint and, in the first instance, ultimately requested that the defendant be ordered to pay 17,500 euros plus interest, as well as an additional 588.10 euros plus interest.
Furthermore, he requested that the counterclaim be dismissed.
The defendant moved to dismiss the complaint in the first instance. In its counterclaim, it sought a declaration that the contracts established between the parties by the cease-and-desist declarations under competition law dated April 26, 2017 (transmitted by fax on April 27, 2017, Ref. No. 1DT037117) and September 25, 2019 (Ref. No. 1DT016319) between the parties were effectively terminated as of March 2,2023, effective as of March 2, 2023, and that the plaintiff is therefore not entitled to any claims for injunctive relief against the conduct described in the aforementioned cease-and-desist declarations, nor to any contractual penalties in the event of culpable violations committed after March 2, 2023.
In the first instance, the defendant argued that the plaintiff had lost its standing to sue after it was no longer listed among the qualified entities under § 4 UKlaG. The reason for this, the defendant contended, was that the plaintiff was no longer able to perform its statutory duties. Consequently, the assertion of the contractual penalty constitutes an abuse of rights. In this regard, it must also be taken into account that the plaintiff has lost its standing to sue and that it has overstated the number of alleged violations.
Furthermore, the basis for the contractual penalty was the offer of wine, sparkling wine, and wine-based beverages. The advertised spirits were not substantively identical in this respect. In each case, the name or business name of the responsible food business operator was also provided, especially since this information was already apparent from the respective product name. Only the address was missing, but this could easily be found online. For the spirits, the alcohol content was also indicated, and this was already apparent from the product image.
The plaintiff wrongly broke down the alleged violations into individual violations. The principles of natural unity of action must be taken into account. The new employee, E, was inadvertently not informed about the cease-and-desist declaration; therefore, this ultimately constitutes a single violation involving minor fault.
In any case, the asserted contractual penalty is significantly excessive. This is all the more true given that the information at issue is of little interest to consumers, meaning that the defendant’s sales are not affected by the omission.
The cease-and-desist agreements were validly terminated by the defendant.
The First Chamber for Commercial Matters of the Regional Court of Koblenz, in its judgment of October 10, 2025, ordered the defendant to pay the plaintiff 10,500 euros plus interest. In all other respects, it dismissed the complaint.
With regard to the counterclaim, the Regional Court found that the contracts established between the parties by the cease-and-desist declarations under competition law dated April 26, 2017 (transmitted by fax on April 27, 2017, Ref. No. 1DT037117) and September 25, 2019 (Ref. No. 1DT016319) between the parties had been effectively terminated as of March 2,2023, effective as of March 2, 2023, and that the plaintiff is therefore not entitled to any claims for injunctive relief against the conduct described in the aforementioned cease-and-desist declarations, nor to any contractual penalties in the event of a culpable breach committed after March 2, 2023.
In its reasoning, the Regional Court stated that the action was admissible. This was not precluded by the fact that the plaintiff was no longer listed among the qualified trade associations pursuant to Sections 8(3)(2) and 8b of the Unfair Competition Act (UWG). Rather, the right to sue arose from the assertion of claims stemming from the contractual penalty provisions.
The action is also well-founded. The plaintiff is entitled to payment of a contractual penalty in the amount of 10,500 euros pursuant to § 339, sentence 2, of the German Civil Code (BGB) in conjunction with the contractual penalty agreements dated April 27, 2017, and September 25, 2019. Termination of these agreements was not declared until March 2, 2023. The contractual penalty has been forfeited. In this regard, the failure to provide information regarding the products at issue here is covered by the contractual penalty clauses. These constitute violations of the same fundamental nature. In all cases at issue here, no information was provided regarding the responsible food business operator. Furthermore, in the advertisements at issue, the defendant failed to provide information regarding allergens and alcohol content. There are a total of three violations. The defendant also acted negligently, as the fault is attributable to the defendant’s employees.
A contractual penalty of 3,500 euros per individual case is appropriate. Finally, the assertion of the contractual penalty does not constitute an abuse of rights. Even though the plaintiff is no longer listed among the qualified trade associations pursuant to Sections 8(3)(2) and 8b of the Unfair Competition Act (UWG), it is nevertheless authorized to assert the claims for contractual penalties arising in its favor.
The admissible counterclaim is well-founded. The defendant’s termination of the contractual penalty agreements is valid. As a result of the plaintiff’s loss of standing to sue, the defendant is entitled to terminate the agreements.
Attorney’s fees are not recoverable, as they were not necessary. The defendant had expressly and unambiguously stated that it was not willing to pay, even in the event of a demand for payment from an attorney.
The defendant filed an appeal on November 10, 2025, against the judgment served on October 10, 2025, challenging the ruling. Referring to its arguments in the first instance, the defendant asserts in support of its appeal that the plaintiff wrongfully issued warnings for a total of seven violations and demanded payment of a contractual penalty of 24,500 euros. No contractual penalty has been forfeited. Contrary to the plaintiff’s warning letter, information regarding the alcohol content was provided for the items “Tasting Set 6x 2cl Fine Spirits” and “H Gin & Tonic Gift Box.” Furthermore, these do not constitute violations of the same essential nature. The spirits at issue here are not substantively identical to the sparkling wines and wines that gave rise to the cease-and-desist agreements. As a precautionary measure, this constitutes, at most, a single act of infringement.
Furthermore, the plaintiff is abusing the law, as he clearly no longer has standing to sue. The overall circumstances also justify the objection of abuse of rights. It follows from these circumstances that the plaintiff’s sole aim was to generate profits. For example, he immediately demanded a contractual penalty of 24,500 euros for seven violations, even though the violations should have been consolidated in each case. The plaintiff did not investigate the defendant’s fault.
The defendant moves to
that the complaint be dismissed in its entirety, with a partial modification of the judgment of the Regional Court of Koblenz dated October 10, 2025—Case No.: 1 HK O 2/25,
a l t e r n a t i v e l y, to grant leave to appeal.
The plaintiff requests that
that the appeal be dismissed.
Referring to his arguments in the first instance, he contends that the assertion of the contractual penalty does not constitute an abuse of rights. The mere fact that the plaintiff is no longer listed among the qualified trade associations pursuant to Sections 8(3)(2) and 8b of the Unfair Competition Act (UWG) is not sufficient to conclude that the assertion of the contractual penalty constitutes an abuse of rights. Rather, the case must be assessed on a case-by-case basis. The defendant has forfeited the contractual penalty. The advertising violations for which a warning was issued also concern alcoholic beverages produced from wine. Only the alcohol content differs. Accordingly, these are violations of the same fundamental nature. The contractual penalties are not excessive; in particular, they do not support the conclusion that there was an abuse of rights.
With regard to the further presentation of the facts, reference is made to the parties’ briefs and the contested judgment of the Regional Court.
II.
The defendant’s appeal—which is admissible (in particular, permissible under § 511(1) and (2) of the German Code of Civil Procedure (ZPO)), filed in accordance with the statutory form (§ 519 ZPO) and within the statutory time limit (§ 517 ZPO), and supported by a statement of grounds submitted in due form and within the prescribed time limit (§ 520 ZPO)—is well-founded.
The complaint is indeed admissible. The fact that the plaintiff has not been listed among the qualified trade associations pursuant to §§ 8(3)(2), 8b of the Unfair Competition Act (UWG) since January 21, 2021, does not preclude the admissibility of the complaint. In this respect, this is a prerequisite for admissibility solely in the context of asserting injunctive relief claims. By contrast, the plaintiff, as a contracting party and alleged holder of the claim, is clearly entitled to bring an action to assert the contractually based claims for a contractual penalty.
The action, which is admissible in all other respects, is unfounded. The plaintiff has no claim against the defendant for payment of a contractual penalty.
It can be left open whether a claim for payment of a contractual penalty is justified on the basis of the cease-and-desist agreement concluded between the parties in conjunction with § 339, sentence 2 , of the German Civil Code (BGB). Even in this case, the action would not succeed because the assertion of the contractual penalty must in any event be regarded as an abuse of rights.
Whether the assertion of a contractual penalty based on a cease-and-desist declaration by a competitor constitutes an abuse of rights is not assessed under § 8c of the Unfair Competition Act (UWG), but rather according to the general principles of good faith pursuant to § 242 of the German Civil Code (BGB) (Federal Court of Justice [BGH] GRUR 2012, 949 (951) – Abusive Contractual Penalty; BeckOK UWG/Dämmer, 30th ed., Oct. 1, 2025, UWG § 8c, paras. 3, 4). Abuse of rights presupposes that the assertion of a right appears to be contrary to good faith. The impermissible exercise of a right generally requires a balancing of interests in the individual case (MüKoBGB/Schubert, 10th ed. 2025, BGB § 242, para. 251). In this context, the exercise of a right is generally considered abusive if the entitled party acquired it through conduct that violates the law, public policy, or a contract (BGHZ 57, 108 (111) = NJW 1971, 2226; BeckOK BGB/Sutschet, 76th ed., Nov. 1, 2025, BGB § 242, para. 58). In addition, the exercise of a right may be abusive in terms of its manner (BeckOK BGB/Sutschet, 76th ed., Nov. 1, 2025, BGB § 242, para. 71) or as a result of a (significant) breach of the entitled party’s own duties (BeckOK BGB/Sutschet, 76th ed., Nov. 1, 2025, BGB § 242, para. 72). Finally, the exercise of a right may be abusive if it is not based on a legitimate self-interest worthy of protection (BeckOGK/Kähler, para. 1164 et seq.). This category includes, among other things, the futile exercise of a right as well as the exercise of a right as a pretext for achieving purposes unrelated to the contract or unfair purposes (BeckOK BGB/Sutschet, 76th ed., Nov. 1, 2025, BGB § 242, para. 82).
In the context of violations of injunctive relief under competition law, an abuse of rights with respect to the assertion of a contractual penalty may still be considered if the debtor fails to terminate a compliance agreement despite having the legal means to do so. In the event of a subsequent breach of the cease-and-desist obligation, the obligated party retains the option of challenging the creditor’s claim—based on the contract that remains valid in the absence of termination—by raising the defense of abuse of rights. This leads to a termination of the binding effect of the submission agreement based on good faith, which is to be assumed only in exceptional cases. This is based on the consideration that the creditor must be precluded from taking action based on a contractual penalty clause that was not terminated in a timely manner if the creditor clearly no longer has the claim secured by the declaration of submission (Federal Court of Justice [BGH], Judgment of September 26, 1996 – I ZR 265/95 –, BGHZ 133, 316–330, para. 45 – “Altunterwerfung I”; BGH GRUR 2001, 85 (86) – “Altunterwerfung IV”; Köhler/Feddersen/Bornkamm/Feddersen, 44th ed. 2026, UWG § 13, para. 210).
In individual cases, conduct constituting an abuse of rights may therefore be considered if the creditor invokes a contractual penalty clause that was not terminated in a timely manner. This is always to be assumed when the creditor is no longer unquestionably—i.e., immediately and clearly—entitled to the statutory right to injunctive relief secured by contract, for example, due to a change in the law (see Federal Court of Justice [BGH], judgment of September 26, 1996 – I ZR 265/95 –, BGHZ 133, 316–330, para. 45). Accordingly, a creditor is precluded from asserting a contractual claim in good faith, in particular, if its substantive authority has clearly ceased to exist due to the amendment to § 13(2) UWG (old version), because, as an association, it no longer actually pursues the commercial interests referred to in the law. This would be inconsistent both with the objective pursued by the legislature (Official Explanatory Memorandum to the UWG Amendment Act, BT–Dr 12/7345, pp. 4 and 10 et seq.) nor with the function of the declaration of submission as an instrument whose effects are analogous to those of a court-ordered injunction if the creditor, having been unequivocally deprived of its substantive and procedural standing, could still claim a contractual penalty for violations occurring prior to termination (BGH, loc. cit.; see also OLG Dresden, judgment of May 20, 2025 – 14 U 1540/24 –).
These considerations do not apply solely to cases in which the claimant’s substantive authority has lapsed due to a change in the law (see BGH, judgment of September 26, 1996 – I ZR 265/95 –, BGHZ 133, 316–330, para. 45), but equally when the claimant’s standing no longer exists for other reasons. The decisive factor is that the contractual penalty is intended to ensure compliance with a cease-and-desist obligation. If, however, the creditor of the contractual penalty is clearly and unambiguously no longer entitled to pursue a claim for injunctive relief—because, for example, as an association, it no longer meets the requirements set forth in §§ 8(3)(2), 8b of the Unfair Competition Act (UWG), this legal assessment must likewise be taken into account to the effect that the creditor can no longer validly derive any rights from a concluded contractual penalty agreement. By contrast, it is irrelevant for what reason the plaintiff no longer possesses the substantive and procedural standing to assert a claim for injunctive relief.
Accordingly, the Federal Court of Justice also emphasizes in its aforementioned decisions that the mere loss of standing to pursue injunctive relief justifies the assumption that the assertion of a contractual penalty—which pursues the same objective—is no longer permissible but must be deemed an abuse of rights. These considerations alone are therefore sufficient to justify the assumption of an abuse of rights; there is no longer any need for additional circumstances to arise that would make the plaintiff’s conduct appear to constitute an abuse of rights in the specific case.
Contrary to the plaintiff’s view, nothing to the contrary follows from the Federal Court of Justice’s statement that it may constitute an abuse of law “in the specific case” if the creditor invokes a contractual penalty clause that was not terminated in a timely manner (see BGH, judgment of September 26, 1996 – I ZR 265/95 –, BGHZ 133, 316–330, para. 45). Based on the wording alone, this statement refers solely to cases in which a contractual penalty clause was not terminated in a timely manner. However, in addition to the loss of standing to sue, such termination may also be justified for other reasons, so that the mere possibility of termination does not in itself indicate an abuse of rights, but rather requires an examination on a case-by-case basis.
The Federal Court of Justice takes a different view in cases where termination is justified due to the plaintiff’s loss of standing to bring injunctive relief. The fact that, according to the further reasoning, an abuse of rights is to be assumed “whenever” the creditor is unquestionably—i.e., immediately and clearly—no longer entitled to the statutory right to injunctive relief secured by contract due to a change in the law (BGH, loc. cit.), demonstrates that, in the Federal Court of Justice’s view, the loss of standing alone not only justifies the termination of the contractual penalty agreement but also constitutes grounds for finding an abuse of rights, in order to ensure consistency between, on the one hand, the right to pursue injunctive relief and, on the other hand, the enforcement of contractual penalties, which ultimately pursue the same objective —namely, the enforcement of a cease-and-desist obligation under competition law. Accordingly, a further weighing of the circumstances of the individual case is no longer required in such instances.
In its decision of October 22, 2025—I ZR 83/25—the Federal Court of Justice once again clarified its intention to adhere to these rules, already developed in the aforementioned decisions, for resolving contractual obligations following the loss of standing to sue (BGH, Order of October 22, 2025 – I ZR 83/25 –, para. 9, juris). This applies not only to the possibility of terminating a contractual penalty agreement—which was the direct subject of this Federal Court of Justice decision—but also extends to the principles established in the Federal Court of Justice decisions “Altunterwerfung I” (judgment of September 26, 1996—I ZR 265/95, BGHZ 133, 316 [juris para. 24]) and “Altunterwerfung II” (judgment of September 26, 1996 – I ZR 194/95, BGHZ 133, 331 [juris para. 28]), which, in addition to a possible termination, specifically include the principles outlined above for assessing whether the assertion of a contractual penalty constitutes an abuse of rights.
Finally, nothing to the contrary follows from the decision of the Higher Regional Court of Hamm (OLG Hamm, judgment of May 27, 2025 – I-4 U 78/22 –, para. 7, juris) cited by the plaintiff. On the contrary, the court in that decision expressly concurs with the case law of the Federal Court of Justice (Bundesgerichtshof) outlined above. To the extent that an abuse of rights was ruled out in the case decided there due to a lack of standing to sue, this was based on the differing factual circumstances in that case, namely that the plaintiff’s standing to sue still existed at the time the contractual penalty was asserted. The requirements for an abuse of rights in that case were ultimately based on the consideration of an abusive warning letter.
Overall, the mere fact that the creditor of a contractual penalty clause no longer has standing to sue at the time the contractual penalty is triggered means that the subsequent assertion of a contractual penalty must be deemed an abuse of rights. To the extent that the Senate expressed a differing view in this regard in its decision of September 24, 2024—9 U 258/24—it does not adhere to that view here.
The defendant, who invokes the defense of abuse of rights under § 242 BGB, must prove the prerequisites for the applicability of this provision (BGH BauR 2006, 1128, superseding BGHZ 116, 149; BAG EzA-SD 2009, No. 21, 8; BeckOGK/Kähler, para. 1907; BeckOK BGB/Sutschet, 70th ed., May 1, 2024, BGB § 242, para. 180).
According to these principles, the plaintiff’s assertion of the contractual penalty in the present case constitutes an abuse of rights. It is undisputed that the plaintiff has not been listed among the qualified trade associations pursuant to §§ 8(3)(2), 8b UWG since 2021, meaning that it has lacked standing to bring injunctive relief under § 8(1) UWG since that time. Since the plaintiff is thus no longer authorized to pursue competition law violations through injunctive relief, this circumstance alone constitutes an abuse of rights to the extent that the plaintiff asserts claims arising from the contractual penalty agreements concluded with the defendant as a result of alleged violations committed in 2023.
Accordingly, the action was dismissed in its entirety.
The decision on costs is based on § 91 of the German Code of Civil Procedure (ZPO).
The decision on provisional enforceability is based on §§ 708 No. 10, 711, 713 ZPO.
An appeal on points of law is not admissible. The present case is not of fundamental significance (Section 543(2), first sentence, No. 1 of the German Code of Civil Procedure (ZPO)). Nor are the requirements of Section 543(2), first sentence, No. 2 of the German Code of Civil Procedure (ZPO) met. Neither the development of the law nor the safeguarding of uniform case law requires a decision by the court of appeal on points of law. Rather, the decision is essentially shaped by the particularities of the underlying individual case. Furthermore, it is based on relevant case law from higher regional courts and the supreme court and, in doing so—while departing from a previously held view—specifically follows the case law of the Federal Court of Justice on the question of whether, in the absence of standing to sue, the assertion of a contractual penalty is to be regarded as an abuse of rights. In this regard, it must be taken into account in particular that the Federal Court of Justice, in its decision of October 22, 2025—I ZR 83/25—made it clear that it intends to adhere to its legal opinion and the rules it has already established in this regard in the past. To avoid repetition, reference is made to the above remarks.
Furthermore, it is not apparent that the Higher Regional Court of Hamm, contrary to the expressly cited case law of the Federal Court of Justice, requires further considerations in the present case—beyond the lack of standing to sue—to establish an abuse of rights and thus takes a view that deviates from that of the Federal Court of Justice. In this regard as well, reference is made to the above remarks.
The amount in dispute for the appeal proceedings is set at 10,500 euros. This decision is based on Sections 47(1), first sentence; (2), first sentence; 48(1), first sentence of the German Court Costs Act (GKG) and Section 3 of the German Code of Civil Procedure (ZPO).
You can download the judgment as a PDF here.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.