The court further ruled that this also constituted a violation of market conduct rules and accordingly there were injunctive relief claims under the Act against Unfair Commercial Practices. The court refers to two decisions of Hamburg Higher Regional Court and Cologne Higher Regional Court that were both issued on provisions of the Telemedia Act relating to data protection law prior to the GDPR coming into effect. In any event, the court does not mention that the prevailing opinion of professional literature considers the GDPR provisions to be final, thus rejecting an application of the Act against Unfair Competition relating to data protection violations.
Since the decision relates to a interim injunction and was issued without hearing the respondent, it is to be assessed with caution. It remains to be seen whether the decision will stand.Practical tip:
In a decision
(in German) dated August 7, 2018, the Regional Court of Bochum rejected a cease and desist claim between competitors due to a violation of the GDPR. In its statement, the Court pointed out that the claimant had no right to obtain a cease and desist decision as the provisions of the GDPR are exhaustive and therefore exclude claims by competitors. In its reasoning, the Court expressly referred to a widespread (and above-mentioned) opinion of the legal literature.