The professional association of dentists in Schleswig-Holstein may not use the feature "code of honor" as a search criterion in the "practice search" function. The Schleswig-Holstein Higher Regional Court has confirmed that the use of this feature as a search criterion is anti-competitive and must therefore be refrained from.

The Schleswig-Holstein Dental Association offers consumers the following services as part of its Homepage The search mask offered a practice search function that could be used to search for dentists according to the criteria surname, first name, town, zip code, specialist dentist and practice specialties. In addition, the criterion "code of honor" was also listed, which, in contrast to the other search criteria, was already ticked in the mask. The so-called "code of honor" was previously adopted at a meeting of the Dental Association and is intended to embody the core of the freelance dentist's professional understanding towards patients, employees, colleagues and business partners.

A dentist from Schleswig-Holstein, who had not signed the code himself, appealed against the use of the "code of honor" as a search criterion in summary proceedings. With success.

Court decision against the "code of honor"

After the dentist had already prevailed at first instance, the Schleswig-Holstein Higher Regional Court confirmed the decision of Kiel Regional Court in its ruling of 12.05.2016 - 6 U 22/15 (press release 07/2016 of 19.05.2016).

By using the feature "code of honor" as a criterion for the "practice search", the Dental Association influenced the decision of consumers to (also) base their search on this criterion. In doing so, it has given those dentists who have signed the "code of honor" an advantage in the competition for patients. By using the feature "code of ethics" alongside the other criteria and pre-selecting it in the search mask, the impression is created that the "code of ethics" is just as important an aspect for the search for a practice as, for example, the qualification as a specialist dentist. This impression is misleading and does not correspond to the actual situation.

All components of the "code of ethics" that relate to the dental treatment activity itself are a matter of course under medical and professional law and may not be advertised in isolation for legal reasons. However, the average consumer would not be able to recognize this.

The misleading effect is also not removed by the fact that the consumer removes the pre-selected check mark from the "Code of Honor" feature and selects another place in the Internet presence about the content of the "code of honor". Rather, the consumer trusts that the dental association has designed the "practice search" objectively and appropriately in the interests of the consumer. The misleading use of the feature "code of honor" is therefore likely to induce the consumer to conclude a treatment contract only with those dentists who have signed the code, which the consumer would not otherwise have done.

Conclusion

By using the additional search criterion "code of honor", the Chamber has given those dentists in the present case a anti-competitive The "Code of Ethics" gives an advantage to doctors who have signed the code, as the criterion suggests that the doctor in question has significant qualifications. In fact, however, the components of the "code of ethics" are self-evident and have merely been recorded in writing. As the consumer cannot recognize this when searching for a practice, the search criterion is misleading and therefore anti-competitive.