Purchasing up-to-date
Purchasing up-to- date (own spelling: EINKAUFAKTUELL ) is an unaddressed direct mail (commercial) from Deutsche Post AG that is distributed weekly in certain delivery areas in Germany to all households that are not advertising-reluctant . As a rule, delivery takes place on Saturdays, exceptionally also on Fridays. The carrier medium of the advertising product is a TV program overview with the current TV program of the following week, selected, predominantly advertising-financed TV channels. The broadcast also contains regional and national supplements and advertisements. The direct mail has been distributed since autumn 2002.
Edition and distribution area
The carrier medium is currently printed with a print run of around 20 million copies by various printing companies, including the Svoboda Press printing company in Prague . Purchasing up-to-date is currently (as of August 2010) distributed in 27 different editions of larger cities and metropolitan areas. The distribution takes place in a PE coating. Bundling them with advertising brochures means that shopping up-to- date is considered an advertising mailing and must not be thrown into letter boxes with the note “no advertising”.
Ecological damage
The PE packaging weighs 2.3 grams per shipment (test measurement 04/2008); This means that with a circulation of 17.6 million pieces, the wrapping makes up a total packaging weight of 40.4 tons per issue. The paper that arises per issue (individual weight 3.3 grams) over 58 tons does not yet include the regional advertising supplements. The environmental impact is due to the fact that in many households, advertising mail usually does not end up in the paper waste separated into paper and outer packaging , is still to be assessed as much higher. The issues of the carrier medium that have been published since March 1, 2008 bear the “ Blue Angel ” environmental label , as they are made from 100% waste paper.
Legal disputes
Cartel complaint and injunctions
Since the introduction of the direct mail , several temporary injunctions have been obtained against Deutsche Post AG. Several of these interim injunctions relate to violations of competition law, which prohibit numerous advertising statements regarding the reach and advertising effect of the advertising brochure as well as certain competitive comparisons in the event of a penalty.
The two publishers' associations, the Federal Association of German Advertising Papers ( BVDA ) and the Federal Association of German Newspaper Publishers ( BDZV ), filed a complaint against Deutsche Post AG with the Federal Cartel Office in September 2003 and accused Deutsche Post AG of targeting advertising customers with dumping prices with the advertising brochure “ Kaufaktuell” Poach advertising and daily newspaper publishers. However, the Bundeskartellamt refused to prohibit the direct mail.
Allegations of abuse of monopoly and unconstitutionality
Hesse's Minister of Economic Affairs, Alois Rhiel (CDU), criticized Deutsche Post AG with regard to Purchasing News to the effect that the group was abusing its monopoly on the postal market with the advertising product. Before the lifting of the letter monopoly in Germany, the lawyer for competition law Christian Frhr noted. von Ulmenstein stated that if mail carriers were to be used as a prospectus distributor when distributing the mail , and thus services were provided for private companies, this would be problematic under competition law. He also noted that the free "bonus" of the television program was a "lure for unsolicited advertising" and therefore "probably inadmissible".
In March 2008, the BDZV filed a lawsuit against Deutsche Post, claiming that it was against the requirement that the press should not be state-of-the- art in connection with the participation of the Federal Republic of Germany in Deutsche Post AG with its advertising product Kaufaktuell and the addition of a magazine . 5 paragraph 1 sentence 2 GG violates and acts anti-competitive. The Hamburg Regional Court dismissed the action (LG Hamburg, November 6, 2008 - 315 O 136/08). The appeal lodged against this was rejected (OLG Hamburg, 06/09/2010 - 5 U 259/08). The appeal against this was also rejected (BGH, December 15, 2011 - I ZR 129/10).
Before the 2009 federal election , Kaufaktuell called for the CDU to be elected. This brought her on the part of the BVDA, the accusation of having violated the requirement of distance from the state. One day before the state elections in North Rhine-Westphalia in 2010 , the title page of Kaufaktuell advertised Prime Minister Jürgen Rüttgers and inside there was an interview with him. Only on closer inspection could it be seen that it was an advertisement. This approach was again criticized by the BDZV.
Direct mail against the will of the recipient
As a result of the ruling by the Lüneburg Regional Court, Deutsche Post was obliged to refrain from sending the Plaintiff its latest purchase. It stated that direct mail against the will of the recipient represented an unreasonable nuisance (LG Lüneburg, 04.11.2011 - 4 S 44/11). It thus overturned a judgment of the Lüneburg District Court of June 1, 2011 (AZ 9 C 17/11). A lawyer had sued who did not want the mailing of letters to be sent to him and who objected to the delivery to Deutsche Post AG. Since the deliveries were not stopped despite an objection, the injured party sued for an injunction in accordance with Section 1004 BGB in conjunction with Section 823 (1) BGB, Section 1 , Section 7 (2) No. 1 UWG . Deutsche Post AG was sentenced to cease and desist under threat of a fine of EUR 250,000 for each offense.
The reasoning of the regional court states that "the sending of direct mail against the express will of the recipient [...] constitutes an illegal interference with the right to informational self-determination" and that "mail that the recipient clearly does not want [...] always represent an unreasonable nuisance within the meaning of Section 7 (2) No. 1 UWG ”. "A message to the advertising company is sufficient for the recipient to be able to identify any conflicting intentions; there is no obligation to affix a sticker" Advertising - No thanks "to the mailbox."
The Deutsche Post AG had stated that the non-delivery was "associated with higher costs and considerable organizational effort". This statement was irrelevant for the court, since "a particularly inexpensive and effective advertisement [...] does not represent a legal argument" "to rise above the legal prohibition of § 7 Abs. 2 Nr. 1 UWG". Here, the court referred to a comparable judgment by the Flensburg Regional Court .
In contrast, the Bonn District Court dismissed an action for injunctive relief with a judgment of August 15, 2013, with reference to the possibility of attaching a corresponding sticker (AG Bonn, August 15, 2013 - 103 C 82/13).
Web links
Individual evidence
- ↑ Purchasing up-to-date awarded with the Blue Angel ( memento of the original from October 26, 2008 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. , Deutsche Post AG, February 22, 2008
- ↑ Purchasing News: Another defeat for Deutsche Post AG / publishers' associations have so far obtained five preliminary injunctions , Federal Association of German Advertising Papers (BVDA) January 22, 2004
- ↑ Deutsche Post AG ensures distortion of competition in the insert business , joint press release BDZV and BVDA, September 24, 2003.
- ↑ Publishers' associations go to Brussels with a complaint about Deutsche Post AG , Joint press release BDZV and BVDA, June 11, 2004.
- ^ Post flood of prospectuses causes trouble ( memento of April 24, 2008 in the Internet Archive ), Neue Rhein Zeitung , November 6, 2007.
- ↑ When the postman rings three times , Der Tagesspiegel , May 19, 2003.
- ↑ Newspaper publishers: Post press plans must be taken off the table immediately / Post's involvement in the press market would be unconstitutional , Bundesverband Deutscher Zeitungsverleger eV (BDZV), April 11, 2008
- ^ LG Hamburg, judgment of November 6, 2008 - 315 O 136/08 . Retrieved March 24, 2019.
- ↑ OLG Hamburg, judgment of 09.06.2010 - 5 U 259/08 . Retrieved March 24, 2019.
- ↑ BGH, judgment of 15.12.2011 - I ZR 129/10 . Retrieved March 24, 2019.
- ^ Rüttgers as a direct mail ( memento from January 11, 2011 in the Internet Archive ), wdr.de from May 8, 2010.
- ↑ LG Lüneburg, judgment of 30.09.2011 - 4 S 44/11 . Retrieved March 24, 2019.
- ^ "Purchasing up-to-date": Please really no advertising ( memento from January 7, 2012 in the Internet Archive ), Financial Times Deutschland , December 11, 2011.
- ^ "Purchasing up-to-date": Harsh judgment against advertising in the mailbox , Express , January 5, 2012.
- ↑ Bonn District Court, August 15, 2013 - 103 C 82/13 . Retrieved March 24, 2019.
