According to the Higher Regional Court of Cologne (judgment of October 8, 2010 – 6 U 69/10), a company may also be liable for anti-competitive advertising measures initiated independently by an affiliated company that are carried out in its competitive interest.

The decided case concerned unlawful e-mail advertising, carried out without the explicit consent of the recipient, which was initiated by an external service provider in the interest and for the benefit of the defendant company and which, from the recipient's perspective, constituted unreasonable harassment.

The court's decision

The court is of the opinion that perpetrator liability (not: liability for disturbance) is not only due to a failure to take reasonable inspection measures within the scope of competition law traffic obligations, but also based on § 8 (2) UWG because a "division of labor" was established in this case. The defendant cannot absolve itself of responsibility by commissioning an external company to carry out advertising measures (email advertising) in its interest if the advertising partner is so integrated into the company's organization that there is an enforceable influence on the partner's activities. In the case of outsourcing advertising services, the advertiser should not be able to hide behind dependent third parties, but must (also) bear the risk they control within the scope of the extended operational organization themselves. The concept of extended operational organization includes, among others, independent commercial agents, Advertising agencies and members of sales organizations fall.