| OLG Naumburg - 9 U 6/19 | |
|---|---|
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| Court: | OLG Naumburg (Germany) |
| Jurisdiction: | Germany |
| Relevant Law: | Article 9(1) GDPR Article 9(2)(a) GDPR |
| Decided: | 07.11.2019 |
| Published: | |
| Parties: | Anonymous |
| National Case Number/Name: | 9 U 6/19 |
| European Case Law Identifier: | |
| Appeal from: | LG Magdeburg (Germany) |
| Appeal to: | |
| Original Language(s): | German |
| Original Source: | Landesrecht Sachsen-Anhalt (in German) |
| Initial Contributor: | n/a |
The Higher Regional Court of Naumburg ruled that processing of health data by pharmacists is only allowed upon explicit consent.
English Summary
Facts
Both the plaintiff and the defendant run pharmacies. The plaintiff alleged that the defendant sells prescription-free medicines via Amazon-Marketplace, violating competition law.
Holding
Firstly, the Court found that customers disclose their health data to the sales platform Amazon deliberately and there is no data transmitted by the defendant to Amazon. After Amazon has transmitted the order data, the situation is comparable with a direct order from the defendant's online pharmacy. The legislator has permitted online pharmacies.
Then, the Court found that customers’ order data is health data and fall within Article 9(1) GDPR. Amazon does not collect health data stricto sensu but it can draw conclusions about customers’ health from the order data.
The plaintiff pointed out that any breaches of data protection laws by the Amazon Marketplace platform are not part of this legal dispute. It is also not a question whether any data protection breaches by the platform can be attributed to the defendant. The decisive factor here is the data processing by the defendant himself.
The Court finally found that there is no explicit consent by the customers as requested under Article 9(2)(a) GDPR and an implied consent cannot fulfill the provision’s requirement.
Additionally, the professional code of conduct of the Saxony-Anhalt Chamber of Pharmacists obliges pharmacists to obtain written consent.
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English Machine Translation of the Decision
The decision below is a machine translation of the original. Please refer to the German original for more details.
DECISION
Reasons
A.
1. The plaintiff is asserting claims for injunctive relief, claims for information and the determination of an obligation to pay damages under competition law against the defendant due to the distribution of over-the-counter medicines available in pharmacies via an Internet trading platform.
2. The plaintiff runs a pharmacy in M. .
3. The defendant is also a pharmacist and operates a pharmacy in O., which is also available on the Internet under the domain "www. ... " is present. The defendant also trades its product range, i.e. also medicines that are subject to pharmacy obligations, via the Internet platform "Amazon Marketplace"; it is represented there by the seller profile "B. ".
4. In a letter dated June 16, 2017, the plaintiff sent a warning letter to the defendant regarding the distribution via this platform and demanded a cease-and-desist declaration subject to penalty.
5. He took the view that he was entitled and entitled to bring an action. He was a competitor of the defendant; the different registered office was not relevant. There is a direct competitive relationship between the parties because the defendant's offer is accessible everywhere via the Internet.
6. Distribution via that platform infringes rules intended to regulate market conduct in the interests of market participants. Specifically, these are Sections 17(3), 3(5) ApBetrO, 43 AMG, 11(1) sentence 1 no. 3, no. 7 and no. 11 HWG, and Section 14(2) no. 1 BerufsO of the Saxony-Anhalt State Chamber of Pharmacists.
7. The provisions of the basic data protection regulation would also be disregarded.
8. The placing of medicines on the Amazon Marketplace trading platform is associated with the marketing of these products by offering them for sale. There is no spatial connection to the pharmacy, because the marketplace is based on an information system outside the traditional area. It is the trading platform of the ruler, not the pharmacist, that has the virtual space, so that the pharmacist cannot fulfil his management function.
9. The non-compliance with the data protection and professional regulations gave the defendant a competitive advantage.
10. The applicant claims that the Court should
11. I. order the defendant to pay the costs,
12. 1. to refrain from distributing pharmacy-only medicines in business transactions for competitive purposes via the Amazon internet trading platform, if a fine of up to € 250,000.00, or alternatively imprisonment for up to six months or imprisonment for up to six months, is avoided for each case of infringement, which is to be determined by the court.
13. 2. to provide the plaintiff with information as to the extent to which the defendant has committed the circumstances described under No. I 1. above, with the information to be broken down in particular according to turnover and federal states and places;
14. II. declare that the defendant is obliged to compensate the applicant for the damage suffered by him as a result of the measures referred to in point Z. above I. above and will continue to incur in the future.
15. The defendant has requested
16. dismiss the action.
17. The defendant took the view that the applicant's request was too vague. It was not clear what "Amazon" meant. The parties were not competitors because a separation between the mail-order pharmacy and the stationary pharmacist had to be made.
18. The Regional Court dismissed the action with a ruling announced on 18 January 2019.
19. In support of its application, it stated that the application was sufficiently specific as regards I.1. There was no doubt as to what was meant by distribution via the internet trading platform "Amazon". The fact that there were other trading platforms on the Internet did not make the application vague.
20. The applicant is in principle entitled to bring an action as a competitor under Paragraph 8(3)(1) of the UWG. Consumers, who belonged due to local proximity to the potential clientele of the pharmacy of the plaintiff located in M., would have access to the same offer of the deplored one over the Internet.
21. However, the applicant has no right to bring an action in so far as it relies on compliance with the Basic Regulation on data protection. For the DSGVO contains a final system of sanctions which allows only those persons whose rights to informational self-determination have been infringed, or the supervisory authority or the complaint of an association, to enforce their rights.
22. However, the action, in so far as it is admissible, is unfounded. The provisions of Paragraphs 17(3) and 3(5) of the ApBetrO, 43 of the AMG, 14 of the Professional Code of Conduct of the Chamber of Pharmacists of Saxony-Anhalt and 11 of the HWG are indeed of a nature to regulate market conduct within the meaning of Paragraph 3a of the UWG. However, there would be no infringement of these provisions.
23. above
The defendant's conduct does not infringe the prohibition on self-service under Paragraph 17(3) of the ApBetrO. An order placed on the internet via a mail-order pharmacy using a trading platform was not to be equated with self-service.
24. The prohibition in § 3 para. 5 ApBetrO to carry out or have carried out pharmaceutical activities by persons other than pharmaceutical personnel is also not affected by the involvement of the Amazon trading platform.
25. The defendant observes the requirement of Paragraph 43(1)(1) of the ArznG that medicines may only be marketed in pharmacies without an official licence and not by mail order. He operated a pharmacy and also had the official permission to mail order.
26. Paragraphs 11 of the HWG and 14 of the Professional Code of Conduct of the Chamber of Pharmacists of Saxony-Anhalt prohibit the pharmacist from engaging in certain forms of advertising. Compliance with those provisions is not guaranteed by the trading platform. Nevertheless, the Chamber assumes that a possible violation of the trading platform cannot be attributed to the defendant.
27. The Senate refers to the facts and reasons for the contested decision.
28. On January 31, 2019, the plaintiff lodged an appeal against the decision served on him on January 25, 2019 and, after a corresponding extension of the deadline, gave reasons for this on March 11, 2019.
29. On the one hand, the Landgericht accepts the admissibility of the action, although it partially denies the plaintiff's standing. On the other hand, it then assumes that the action is partially inadmissible, as is apparent from the grounds of the judgment. This was a procedural error. Moreover, the standing to bring an action in civil proceedings was not a prerequisite for a substantive judgment.
30. above
A general negation of the market conduct regulation by the DSGVO is wrong in law and contradicts the case law of the Hanseatic Higher Regional Court of Hamburg.
31. It reiterates its view that the distribution of medicinal products sold in pharmacies infringes Paragraph 43(1) of the AMG. The issue here is not the prohibition on self-service, but the fact that the defendant markets pharmacy-only medicinal products via third parties who are not staff members of its pharmacy, so that the pharmacy does not (exclusively) market the pharmacy-only medicinal products institutionally.
32. The Landgericht misconceives that information and advice on medicinal products subject to pharmacy obligations is a pharmaceutical activity which, under Paragraph 3(5) of ApBetrO, is reserved for pharmacy staff. On Amazon Marketplace, however, information and advice is provided to customers even before they have made a purchase decision. The fact that the customers could recognise that this "information and advice" as it takes place is not provided by pharmaceutical staff of the defendant does not change the fact that such "information and advice" takes place, although according to the law it is reserved for the defendant's pharmacy and may only be provided by pharmaceutical staff of this pharmacy.
33. It is therefore irrelevant whether the customer reviews are attributable to the defendant.
34. Distribution via a trading platform also violated § 8, Subsection 2, ApoG. This protective provision prohibits holdings in a pharmacy in the form of a dormant partnership and agreements under which the remuneration for loans granted to the licence holder or other transferred assets is based on the turnover or profits of the pharmacy. Amazon allows itself to be paid for the sale of the pharmaceuticals offered for sale by the defendant. This payment is oriented to the turnover of the defendant's pharmacy. The defendant would have to pay Amazon 15% of the gross turnover per article sold.
35. On March 25, 2019, the plaintiff had his appeal substantiated by another attorney of record:
36. Article 9 of the DSGVO shows that the processing of personal health data is prohibited in principle. Exceptions were only possible under certain conditions. An extension of this authority to qualified personnel is only possible under certain conditions. A pharmacist is liable to prosecution under § 203.4 sentence 2 no. 1 of the German Criminal Code if he does not ensure that any other person involved in the pharmacy who unauthorisedly discloses a secret which has become known to him in the course of or on the occasion of his work is obliged to maintain secrecy.
37. The applicant makes the application,
38. amend the judgment of the 4th Chamber for Commercial Matters of the Magdeburg Regional Court delivered on 18 January 2019; and
39. I. order the defendant to pay the costs,
40. 1. to refrain from distributing pharmacy-only medicines in business transactions for competitive purposes via the Amazon internet trading platform, if a fine of up to € 250,000.00, or alternatively imprisonment for up to six months or imprisonment for up to six months, is avoided for each case of infringement, which is to be determined by the court.
41. 2. to provide the plaintiff with information as to the extent to which the defendant has committed the circumstances described under No. I 1. above, with the information to be broken down in particular according to turnover and federal states and places;
42. II. declare that the defendant is obliged to compensate the applicant for the damage suffered by him as a result of the measures referred to in point Z. above I. above and will continue to incur in the future.
43. The defendant makes the application,
44. dismiss the appeal.
45. above
It reiterates its view that the DSGVO does not have a market-regulating character. In this respect, the Landgericht Magdeburg was right to deny that it had standing.
46. There is no infringement of Paragraph 43(1) of the AMG. The respondent in the appeal would not market pharmacy-only medicines via third parties. The Amazon Marketplace platform merely serves the customer registered there as an aid in the search for and selection of the right product and the right contractual partner for a subsequent contractual arrangement and order.
47. In this context, the defendant also expressly denies that he had to give 15 % of his gross turnover to Amazon and pay an additional monthly fee of € 45. The plaintiff's allegations were made in the blue. He will not disclose corresponding trade secrets in these proceedings, as this is not relevant.
48. A violation of § 3, Subsection 5 ApBetrO is ruled out. There is no inadmissible information and advice to the customer prior to the purchase decision. It may be that the customer can also obtain information on the Amazon platform by reading customer reviews and ratings. Such an information possibility exists in principle and is of course also used by customers. This has nothing to do with the fact that the pharmacist must ensure that advice and information in his area of responsibility is only provided by pharmaceutical personnel.
49. The plaintiff complained for the first time in the appellate instance of an infringement of § 8.2 of the ApoG. Such a violation would be assumed merely on the basis of presumptions.
50. The duty of confidentiality is not violated by the involvement of the trading platform. The data, if it were health data at all, would first be transmitted by the customers to the provider Amazon. He could not be held responsible for this. This is because no data reached Amazon via the defendant. In addition, it was again denied that the return was processed via Amazon. This was simply wrong.
B.
51. The appeal is admissible and has partial success in the case.
52. The plaintiff is entitled to injunctive relief pursuant to Sec. 8 (1) Sentence 1 in conjunction with Sec. 3a UWG for violation of Art. 9 (1) DSGVO.
I.
53. The plaintiff is actively legitimized as a competitor (see II.,1.). In the present case constellation, the rules of the DSGVO are to be regarded as market conduct rules within the meaning of § 3a UWG (see II., 2). The data collected are health data within the meaning of Article 9 (1) DSGVO (II., 3.). The Defendant processes the data collected by the trading platform without express consent within the meaning of Art. 9 para. 2 letter a DSGVO (II., 4.).
54. In the present case, the Senate is not able to determine violations of professional law (see III.).
55. A claim for damages or an upstream claim for information is excluded, since the defendant is not to be accused of any fault (IV.).
II.
56. 1. the plaintiff is actively legitimised The parties are competitors within the meaning of Section 8 (3) no. 1 UWG.
57. aa) The status as a competitor pursuant to Section 8(3) No 1 UWG requires a concrete competitive relationship within the meaning of Section 2(1) No 3 UWG. This is the case if both parties attempt to sell similar goods or services within the same end-consumer circle and can therefore impair the competitive behaviour of the one, i.e. impede or disrupt the sales of the other (BGH, ruling of 13 July 2006 - I ZR 241/03, BGHZ 168, 314 marginal no. 14 - Contact advertisements; ruling of 28 September 2011 - I ZR 92/09, GRUR 2012, 193 = WRP 2012, 201 marginal no. 17 - Sports betting on the Internet II).
58. Since, in the interest of effective individual protection under unfair competition law, no high requirements are to be placed on the existence of a concrete competitive relationship, it is sufficient for this purpose that the infringer, through his infringing activity in the concrete case, puts himself in some way in competition with the party concerned (BGH, judgment of 29 January 2008, p. 1). November 1984 - I ZR 158/82, BGHZ 93, 96, 97 f. - DIMPLE, mwN; judgment of 10 April 2014 - I ZR 43/13, GRUR 2014, 1114 = WRP 2014, 1307 marginal no. 32 - nickel-free; judgment of 19 March 2015 - I ZR 94/13, GRUR 2015, 1129 marginal no. 19 = WRP 2015, 1326 - hotel rating portal). According to the case-law of the Federal Court of Justice, a concrete competitive relationship can therefore be assumed if there is an interaction between the advantages which one party seeks to achieve for its own company or that of a third party by means of a measure and the disadvantages which the other party suffers as a result, in the sense that its own competition can be promoted and the competition of others can be impaired (Federal Court of Justice, GRUR 2014, 1114 marginal no. 32 - nickel-free; GRUR 2015, 1129 marginal no. 19 - hotel rating portal). It is not sufficient, however, if the measure affects the other party only in some way in his market aspirations. A mere impairment is not sufficient to establish a competitive relationship if there is no competition whatsoever in supply or demand competition (BGH, judgment of 26 January 2017 - I ZR 217/15 -, marginal no. 16, juris m.w.N.)
59. (bb) As the Internet is also available in the catchment area of the applicant's pharmacy, the parties compete geographically. In fact, both carry the same goods. It is therefore conceivable that a customer buys a pharmacy-only drug from the defendant via Amazon Marketplace instead of from the plaintiff's pharmacy.
60. The defendant's argument that the customers of a pharmacy with a presence are interested in advice, while customers who do not require advice buy on the Internet, does not convince the Senate. It may be the case that a customer who wants advice will usually go to a retail pharmacy. On the other hand, it is by no means mandatory that a customer who is not interested in advice buys only on the Internet.
61. 2 In the opinion of the Senate, the provisions of the DSGVO in the present case constellation are to be regarded as rules of market conduct within the meaning of Paragraph 3a of the UWG.
62. a) A standard regulates market conduct in the interest of competitors, consumers or other market participants if it has a competitive impact in such a way that it protects the competitive interests of persons who are potential suppliers or purchasers of goods or services (cf. BGH, judgment of 3 July 2003 - I ZR 211/01, BGHZ 155, 301, 305 - Telefonischer Auskunftsdienst; judgment of 12 July 2007 - I ZR 18/04, BGHZ 173, 188 marginal no. 35 - Jugendgefährdende Medien bei eBay) A provision which serves to protect the rights, legal interests or other interests of market participants is a market conduct regulation if the protected interest is precisely protected by the market participation (see Federal Court of Justice, judgment of 8 October 2015 - I ZR 225/13, GRUR 2016, 513 marginal no. 21 = WRP 2016, 586 - Egg cell donation; MünchKomm.UWG/Schaffert, 2nd ed, § 4 No. 11 marginal 60), i.e. is affected by the conclusion of exchange contracts and the subsequent consumption or use of the acquired goods or services (see GroßKomm.UWG/Metzger, 2nd ed., § 4 No. 11 marginal 38; Köhler in Köhler/Bornkamm, UWG, 35th ed., § 3a marginal 1.67). There is no need for a specifically competition-related protective function in the sense that the provision specifically protects market participants from the risk of unfair influence on their market conduct (see BGH, judgment of 10 January 2006, p. 1.67). I ZR 189/07, GRUR 2010, 754 marginal 20 et seq. = WRP 2010, 869 - Golly Telly; judgment of 4 November 2010 - I ZR 139/09, GRUR 2011, 633 marginal 34 = WRP 2011, 858 - BIO TABAK; aA Ohly in Ohly/Sosnitza, UWG, 7th ed, § 3a marginal 25; Gärtner/Heil, WRP 2005, 20, 22; Scherer, WRP 2006, 401, 404). However, the provision must - at least also - aim at protecting the competitive interests of market participants; merely reflex effects in their favour are therefore not sufficient (BGH, judgment of 27 April 2017 - I ZR 215/15 -, marginal no. 20, juris m.w.N.)
63. b) The question of whether data protection provisions constitute market conduct rules after the entry into force of the DSGVO has not yet been conclusively clarified in literature and case law.
64. aa) In the literature it is now argued that data protection provisions after the entry into force of the DSGVO do not constitute market conduct rules within the meaning of Section 3(a) of the UWG (Köhler in: Köhler/Dornkamp/Feddersen, UWG, 36th ed., 2018, Section 3a marginal no. 1.40a and 1.74a).
65. bb) In contrast, the Hanseatic Higher Regional Court of Hamburg assumes, even after the DSGVO has entered into force, that in this respect the respective provision must be examined specifically to determine whether precisely that provision is intended to regulate market conduct (judgment of 25 October 2018 - 3 U 66/17 -, marginal no. 72, juris).
66. above
cc) The Senate agrees with the opinion of the Hanseatic Higher Regional Court of Hamburg. It goes without saying that data protection rules primarily protect the informational self-determination of the person concerned. Nevertheless, the DSGVO also pursues other objectives: Recitals 6 to 8 of the DPA Directive state that the Directive is also intended to raise the cross-border flow of personal data to a uniform level of protection (Recitals 6 and 7), because a different level of protection may constitute an obstacle to the exercise of economic activities at Community level and distort competition (Recital 7, second sentence), and the provisions of the Directive also serve to remove such obstacles in order to regulate a cross-border flow of personal data in a coherent manner in all Member States and in accordance with the objective of the internal market (Recital 8).
67. Before the DSGVO entered into force, it was also already recognised in case law that the use of data for advertising purposes is to be regarded as a rule of market conduct under Section 28 (3) BDSG old version (OLG Stuttgart, MMR 2007, 437, marginal no. 27; OLG Cologne, MMR 2009, 845; CR 2011, 680; ZD 2012, 421; OLG Karlsruhe, ZD 2012, 432, marginal 34; OLG Dresden, BeckRS 2014, 15220, in this respect unclear, whether only the provision of Sec. 28 para. 3 BDSG old version or Sec. 28 BDSG old version, which is also the only disputed provision there, has generally been regarded as regulating market conduct).
68. c) In the present case, the defendant involved the Amazon Marketplace platform in the offering for sale of the medicines and medical devices which it sells in such a way that it used the popularity of that platform to attract customers. He thus uses the platform as an advertising medium. Amazon itself evaluates the data - albeit anonymously - in order to advertise: "Customers who have looked at product A are also interested in product B". This is aimed at the market and touches the competitive interests of the market participants. This is because by evaluating the sales data, customers can be addressed in a targeted manner.
69. 3. the order data of the customers are health data within the meaning of Art. 9 para. 1 DSGVO.
70. The data that Amazon collects for the ordering process is certainly not health data in the narrower sense, such as medical findings. Nevertheless, conclusions regarding the health of the purchaser can be drawn from the order data. Insofar as the defendant objects that an Internet order can also be placed for members of the family and other persons, this applies. However, this only reduces the probability that the conclusion drawn is correct. In the opinion of the Senate, this is not sufficient to render the health-related nature of the data unnecessary. This would lead to a lowering of the level of protection.
71. In so far as the defendant objects that the data protection authorities at EU level do not take health data as a basis for the purchase of standard medical products, it fails to take into account that not only standard medical products are sold here, but also medicines that have to be purchased in pharmacies. In particular, the combination of several pharmacy-only medicines allows conclusions to be drawn about the health status of the purchaser, even if the probability of an accurate conclusion is reduced in terms of security by the possibility of ordering from a third party, as already explained.
72. 4 In the present case, there are two data processing operations within the meaning of Article 9(1) of the DSGVO.
73. a) Data processing by the Amazon Marketplace platform is not commissioned data processing for the defendant in the sense of the DSGVO. The General Terms and Conditions of Amazon contain this passage. Nor has any party claimed commissioned data processing; the defendant itself admits that it is not commissioned data processing.
74. b) Possible data protection violations of the Amazon Marketplace platform are not part of the legal dispute; the plaintiff expressly points this out (see Vol. III, p. 6 and p. 28, loc. cit. In this respect, it is also not a question of whether possible data protection violations of the platform can be attributed to the defendant.
75. c) The decisive factor here is the data processing by the defendant himself. For this, there is no effective consent within the meaning of Art. 9 para. 2 lit. a DSGVO.
76. aa) According to Art. 9 Para. 1 DSGVO, it is not the collection but the processing of the personal data referred to therein that matters.
77. bb) Consent for processing by the defendant within the meaning of Article 9 paragraph 2 letter a DSGVO is lacking here.
78. α) An explicit consent of the customers during the ordering process has not been claimed by any party.
79. β) In view of the wording of Art. 9 para. 2 letter a DSGVO ("expressly consents"), an implied consent is unlikely to fulfil the requirement of this provision. In addition, the obligation of the pharmacist to obtain written consent is concretised in the professional code of conduct of the Pharmacy Chamber of Saxony-Anhalt.
80. § Section 15(2) of these Rules of Professional Practice states
81. "The storage and use of patient-related data requires the prior written consent of the person concerned, unless they are permitted under the Federal Data Protection Act and other authorisation bases or are required by legal provisions.
III.
82. Apart from Paragraph 15(2) of the abovementioned professional code of conduct, the defendant has not infringed the law governing the profession of pharmacist.
83. 1) The Senate is unable to follow the plaintiff's view that the defendant, through the chosen distribution model, is marketing medicinal products in breach of Paragraph 43(1) of the AMG and is responsible for the inclusion of persons who are not subject to the obligation of secrecy under Paragraph 203 of the Criminal Code.
84. a) According to established case law, Internet advertising is usually only an invitation to submit an offer. The Senate sees no reason to deviate from this basic rule in the field of pharmacy law.
85. b) In this way, the customer uses the sales platform as a messenger under civil law for the transmission of his offer to conclude a contract of sale. He thereby discloses his health data to the sales platform himself.
86. c) The decision to choose this route to purchase a drug is the sole responsibility of the customer.
87. Therefore, neither an infringement under Section 43(1) of the AMG nor under Section 203 of the German Criminal Code is possible. This is because the pharmacist only uses the sales platform to increase the reach, but not for distribution. After the transmission of the order data by Amazon, the situation is comparable to a direct order from the defendant's online pharmacy - apart from the data protection problems already mentioned. However, the legislator has expressly permitted the operation of online pharmacies.
88. This also rules out a violation of § 3 paragraph 5 ApBetrO. This is because the pharmaceutical activities only begin after Amazon has transmitted the data to the defendant.
89. 2. a violation of the self-service prohibition pursuant to § 17 para. 3 ApBetrO is excluded for the reasons stated by the Regional Court. The senate expressly refers to the corresponding statements in the challenged judgment.
90. 3. the advertising measures on the trading platform are recognisably - as the regional court correctly states - attributable to Amazon or indirectly to the customers who write reviews. The advertising measures refer to the product and not to a specific online pharmacy and therefore benefit not one but all pharmacists represented on the platform. The Senate therefore sees no violation of § 11 HWG or § 14 Professional Code of Conduct of the Pharmacy Chamber of Saxony-Anhalt.
91. 4. Amazon's alleged revenue share is based on conjecture. Furthermore, there is neither a participating loan nor a rental agreement based on turnover. A violation of § 8 Para. 2 ApoG is therefore ruled out.
IV.
92. A possible claim for damages according to § 9 UWG and a preparatory claim for information presuppose fault. In view of the fact that the legal situation regarding the market-regulating character of the DSGVO has not yet been conclusively clarified by case law, the Senate approves the defendant's inevitable error of prohibition under § 17 sentence 1 of the German Criminal Code by analogy.
C.
93. I. The decision on costs is based on § 97 Para. 1 ZPO; the decision on provisional enforceability is based on §§ 708 No. 10, 711 ZPO.
94. II. The decision on the amount of the fee dispute value for the appeal proceedings is based on §§ 39 (1), 47, 63 GKG, 3 ZPO. The Senate has assessed the claim for injunctive relief on the one hand and the claim for damages with ancillary claims on the other hand as being the same because of the low level of economic competition.
95. III. the revision was to be allowed.
96. The requirements for an admission according to § 543 (2) ZPO are met; because this case is of fundamental importance.
97. 1. a case is of fundamental importance if a question requiring clarification is to be decided, the occurrence of which is to be expected in an undefined number of cases and therefore the abstract interest of the general public in a uniform development and handling of the law is involved (BGHZ 151, 221)
98. 2. In the view of the Senate, it needs to be clarified whether the rules of the DSGVO are to be regarded as market conduct rules within the meaning of Section 3a of the UWG in individual cases. Due to the market-dominating position of the Internet trading platform involved here, there is likely to be an abstract public interest in clarifying whether and, if so, under what conditions the trade in medicines subject to pharmacy obligations is possible via such an Internet trading platform.
