Defense against abusive contractual penalty claim – action withdrawn

Under the lead of attorney Marc Dümenil, HEUKING successfully defended a mid-sized company against a lawsuit seeking payment of a contractual penalty in the five-figure range before the Regional Court of Bochum (Case No. I-15 O 67/25). Following oral argument during the course of the litigation, the Regional Court of Bochum recommended that the plaintiff withdraw the action. The plaintiff followed this recommendation and withdrew the lawsuit.

Facts

The plaintiff is a consumer protection association. In 2016 and 2017, it demanded penalty-backed cease-and-desist declarations from our client regarding information disclosure obligations in online commerce. Our client issued several such penalty-backed cease-and-desist declarations. At that time, the plaintiff was a qualified consumer association registered on the list pursuant to Section 4 of the Injunctive Relief Act (Unterlassungsklagegesetz, UKlaG).

In 2021, the Federal Office of Justice revoked the plaintiff's registration on this list. From that point forward, the consumer protection association was no longer entitled to assert unfair competition injunctive relief claims under Section 8(1) of the Unfair Competition Act (Gesetz gegen den unlauteren Wettbewerb, UWG).

Nevertheless, in 2023—more than two years after losing its registration on the list—the consumer protection association assessed a contractual penalty in the five-figure range against our client. After we rejected the claim out of court, the consumer protection association filed suit in 2025.

Litigation and the Defense of Abuse of Rights

The Regional Court of Bochum adopted our legal position that such an assertion of contractual penalty claims constitutes an abuse of rights. The court asked the consumer protection association whether it would consider making a procedural declaration to terminate the litigation. The consumer protection association withdrew the action.

Practical Significance

The outcome of this litigation underscores the importance of a comprehensive review and legal counsel in connection with contractual penalty claims arising from cease-and-desist declarations:

• For companies that have previously issued penalty-backed cease-and-desist declarations to consumer protection associations, trade associations, or similar organizations, this case means the following: If a contractual penalty is demanded by a creditor that is no longer registered on the list, the claim should not be paid without legal review. Rather, it is advisable to examine formal aspects as well, such as the creditor's registration history. The properly raised defense of abuse of rights under Section 242 of the German Civil Code (Bürgerliches Gesetzbuch, BGB) is a powerful weapon available to the obligor.
• At the same time, the case demonstrates that the mere formal existence of a cease-and-desist agreement is not sufficient to permanently legitimize contractual penalty claims. The legislature deliberately structured unfair competition law such that consumer associations are entitled to assert claims only for as long as they remain registered on the list.

Counsel for the Mid-Sized Company
HEUKING:
Marc Dümenil (Lead), (Competition & Advertising Law), Düsseldorf