The German Consumer Rights Enforcement Act (Verbraucherrechtedurchsetzungsgesetz, VDuG) entered into force on 13 October 2023. It serves to implement the Collective Redress Directive ((EU) 2020/1828). Most importantly, it contains a new type of claim, the so-called “Abhilfeklage”. Within only six months, German consumer associations have filed such claims in six cases (possibly more that are not publicly known yet), the latest one being a claim by Verbraucherzentrale Bundesverband against DAZN concerning unilateral price increases that was filed in April 2024 (press release available here).

The “Abhilfeklage” is a representative action aimed at redress measures that can be brought by qualified entities (such as consumer associations) against businesses. It allows courts to hand down decisions ordering businesses to take certain actions (including the payment of monetary compensation) to a group of individual consumers, provided that they have suffered from the same type of wrongdoing, that their claims are essentially identical, and that they have registered to participate in such action.

Based on the number of “Abhilfeklagen” brought within a short period of time, this type of claim is likely to have a much bigger impact than the already (and still) existent so-called “Musterfeststellungsklage”. This is mainly because the new “Abhilfeklage” allows courts to order the defendant to take certain actions, including the payment of a compensation; in contrast, the “Musterfeststellungsklage” which has already existed prior to the new law only allows courts to make binding findings on specific aspects that are relevant for the consumers’ claims (which then would still have to file individual claims if the defendant refuses to compensate them).

Here are the key facts about the “Abhilfeklage”:

• Admissibility: Essentially identical consumer claims with at least 50 potentially affected consumers.

• Claims in scope: All civil law claims by consumers against businesses, e.g. payment claims resulting from inadmissible price adjustment clauses, claims to repair or replacement due to defective products, claims for damages based on misleading advertising, etc.

• Opt-in: Consumers must actively register their claims to the Verbandsklageregister (which is operated by the Federal Ministry of Justice) within not more than three weeks after the closing of the oral hearing.

• Eligible parties to join: Only consumers and very small SMEs (which have less than ten employees with not more than EUR 2 million annual turnover).

• Outcome of proceedings: If the parties do not settle the case (which requires approval from the court), the court can order the business to take certain actions; this includes the payment of a collective amount to a group of individual consumers (whereby the requirements for the individuals to obtain such payments will be specified), which will be distributed by a trustee amongst the consumers concerned.

The new “Abhilfeklage” poses a relevant (and largely unknown) risk for businesses, in particular regarding damage claims. While small damage claims are often not pursued by consumers in court, this might now change; consumer associations could bring corresponding claims and that could result in substantial damages payments (depending on the number of consumers concerned). The six actions that have been brought already indicate that this is not only a theoretical risk; consumer associations have started using this new tool on a regular basis. That affects the risk exposure for businesses, which should consider this relatively new risk in their decisions.

Information about the currently pending “Abhilfeklagen” is publicly available in the registry of the Federal Ministry of Justice. The full text of the VDuG is available here.

Our Munich partner Dr. Benjamin Koch has supported Dr. Sönke Becker and his team from Herbert Smith Freehills with the sale of the non-European part of Lufthansa’s catering business LSG to Aurelius.After the sale of the European part of LSG from Lufthansa to Gate Group in 2019, Lufthansa now sold the non-European part of the catering business to Aurelius, a private equity investor located in Grünwald (close to Munich). Our Munich partner Dr. Benjamin Koch assisted Herbert Smith Freehills with regard to IP and IT law aspects of the transaction; he was also involved in the sale of the European part of the LSG business in 2019.

The full article is available here.

We are pleased to announce that Philip Schmitz has become an Associated Partner of our firm as of 01.01.2022. After several years in an international law firm, Philip joined our firm in 2018 and advises and represents national and international clients, in particular in contentious proceedings. The focus of his work is on combatting counterfeits and on IP law advice in corporate transactions.

Kraft Heinz, the global player in the foodstuff market, acquired the majority of shares in the Dusseldorf-based start-up Just Spices that offers e.g. baking mixes, cookbooks and, of course, spices. Skadden, Arps, Slate, Meagher & Flom led the transaction on the part of Kraft Heinz and our team advised Kraft Heinz in relation to IP and IT law aspects (Dr. Benjamin Koch) and data privacy topics (Dr. David Weller). A press release is available on the website of “JUVE“. The German newspaper “Handelsblatt” and the online magazine “Gründerszene” also reported on the deal.

Private equity investor Afinum acquired a majority stake in Fishing King, the largest provider of online fishing courses in German-speaking countries. Once more we successfully collaborated with Dr. Ludger Schult and his team from GLNS in a transaction, in which our partners Dr. Benjamin Koch and Dr. David Weller advised Afinum on IP, IT and data privacy aspects. The press release is available on the GLNS website. The German newspaper “Handelsblatt” also reported on the transaction.

Our partner Dr. Benjamin Koch assisted BMH BRÄUTIGAM in advising Earlybird Venture Capital on a EUR 23 mio. investment in the AI startup Aleph Alpha that is focusing on general AI. Aleph Alpha GmbH, based in Heidelberg, is one of the most promising German startups in their field. Dr. Benjamin Koch, who is heading our Munich office, advised on the IP and data privacy issues of the transaction. The full press release can be found on the website of BMH Bräutigam.

Acquisition of “sofatutor”: Our partners Dr. Benjamin Koch and Dr. David Weller teamed up with GLNS to advise EMERAM Capital Partners on the acquisition of “sofatutor”, one of Germany’s market-leading digital learning platforms for grades 1 to 12. Dr. Benjamin Koch advised on the IP-related issues, while Dr. David Weller handled IT and data privacy aspects. It was a great pleasure to work together once more with Dr. Ludger Schult and his team from GLNS. The full press release is available on the GLNS website at this link.

WTR 1000 – 2021 “Gold Band” Recognition: “World Trademark Review”, in its 2021 ranking of the world’s leading trademark professionals and law firms, once again places Lubberger Lehment in the Gold Band. The full ranking for Germany is available here.

It was a pleasure to team up once more successfully with Ludger Schult and his team from GLNS Rechtsanwälte Steuerberater to assist Egeria in the acquisition of Klafs Group, the world’s largest producer of high-quality integrated sauna systems and steam baths. Our colleagues Dr. Benjamin Koch and Philipp Engert (both Munich) assisted with the IP part of the transaction, while Dr. David Weller from our Hamburg office advised on the IT and data protection aspects. The full press release on the acquisition can be found under this link.

We are pleased to note that the career magazine AZUR/JUVE, following a survey, has named Lubberger Lehment as one of the two top employers in trademark and unfair competition law in Germany. We achieve a “Very Good” rating for associate satisfaction, career and family and work-life balance. In terms of internship and clerkships, we’re not “Very Good” yet…but we’ll be working on that, too! The article can be found under this link (only available in German language).