Due to the so-called Omnibus Directive (EU) 2019/2161, the competition law (UWG) changed as of 28 May 2022. The corresponding provision on fines is implemented by Section 19 of the German Unfair Trading Act (UWG). This means that in future, fines will also be imposed in addition to admonition letters being issued. The new Section 5 (3) No. 2 UWG contains provisions on the so-called dual quality of goods and implements Art. 3 No. 3 of Directive (EU) 2019/2161.
Internetrecht Rostock explains a violation of the dual quality prohibition as follows: “First of all, it must be a product that is marketed identically in several member states of the European Union. Identity of a product also exists if the information on the product packaging is translated into the respective national language. On the other hand, there is no identical product if two products of the same kind and type are offered, but with different presentation (packaging, product components). This applies all the more if the product is offered under different brands. Thus, a key factor is likely to be the appearance of the product packaging.”
In supplementation of the above, the store operator blog reports: “Accordingly, it is misleading if a product is marketed in one member state of the EU as identical to a product made available on the market in other member states, although these products differ substantially in their composition or in their characteristics, unless this is justified by legitimate and objective factors. The background to this was based on complaints from some member states that products of inferior quality were being marketed under the same brand.“
“The danger of misleading people should be ruled out if the differences between the goods are easy for consumers to recognise, such as by a label that informs about existing differences,” the store operator blog continues.
The topic of labelling by far does not only concern any dual quality label or the labelling of products and packaging, but also compliant information in online stores and in the instructions for use, e.g., CLP labelling, ecodesign labelling, energy efficiency label, CE mark, WEEE logo, manufacturer information, UN 38.3 labelling of batteries or disposal labels (e.g. Triman, Mobius Loop, Tidyman, 97/129/EC, Sorting Information).
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