The provision of § 1 AÜG, that the industrial workers transfer of administrative license required, serves to protect the licensed employee, and therefore does not market conduct regulation within the meaning of § 4 No.. 11 UWG dar.
OLG Frankfurt 6. Civil Division of 29.01.2015 to 6 You 63/14
§ 1 AÜG, § 4 No. 11 UWG
The provision of § 1 AÜG, that the industrial workers transfer of administrative license required, serves to protect the licensed employee, and therefore does not market conduct regulation within the meaning of § 4 No.. 11 UWG dar.
LG Frankfurt, 27. February 2014, The: 2-3 The 177/13, Judgment
The appeal by the applicant against the most 27.2.2014 announced the judgment 3. Civil Chamber of the Landgericht Frankfurt am Main (The.: 2-3 The 177/13) is rejected.
The applicant shall bear the costs of the appeal.
This judgment and the judgment under appeal are unfunded provisionally enforceable. The applicant may make enforcement of the defendant by security in the amount of 110 % the turn following the judgment enforceable amount, unless the defendant from foreclosure security of 110% of each to be enforced amount does.
The revision is allowed.
Reasons
I.
1
The parties are service company in the field of exhibition services. The defendant advertises in his website "X.de" with the placement of personnel with German language and good knowledge of English (Exhibit K 1).
2
The defendant does not have, in contrast to the applicant a permit for temporary workers i. S. of § 1 Temporary Employment Act (AÜG). He concludes with the transactions performed by him – mostly female – People from pre-formulated contracts, as in Appendix K 5 are shown. As the "Order" on signed contracts are from Exhibit K 6 the defendant's apparent general terms of business. The defendant, the services provided by the mediated hostesses services its respective customer's account and then pay the agreed fee to the exhibition staff from.
3
The applicant claims that the defendant, unlawful to operate temporary workers, which he behaving the same time anti-competitive. And he will save himself unfairly competitive advantages, by firstly costs and expenses of the authorization procedure, save for other personnel administration costs and also to the customers and the exhibition staff gives the impression, particularly "red tape" to act. The applicant has the defendant to cease and desist, Information, Damages and made to refund the Abmahnkosten in claim.
4
For further details of the facts is in accordance. § 540 Abs. 1 No.. 1 ZPO taken on the factual findings in the judgment under appeal reference.
5
The district court dismissed the action. A competitive legal injunction did not exist, because it is the licensing requirements pursuant to § 1 AÜG a pure market access- but not a market behavior rule i. S. of § 4 No.. 11 UWG handle. Tort claims were also not given. The objective pursued by the Annex claims desire could therefore also not be upheld.
6
With the appointment of the applicant pursues her goal first instance further. It complains that the district court, § 4 No.. 11 UWG not applied correctly, § 1 AÜG misinterpreted and §§ 9, 10 To have overlooked AÜG in their legal implications for the local dispute.
7
It must be taken into account, that by licensing in accordance with § 3 AÜG necessary knowledge and other conditions would also affect the conduct of a lender and therefore live that provision, a protective function for the market partners held.
8
Furthermore, the district court may have missed, that the hostesses as salaried workers also a consumer within the meaning of § 2 Abs. 2 UWG are. In its judgment of 31. More 2012 (The. I ZR 45/11 – Abusive penalty) the Bundesgerichtshof clarified, that a market conduct regulation already view only if, if a violation of the substantive care of the entrepreneur exists and where the infringement has suitable, Discourage consumers from, make legitimate claims. This must be applied analogously to the situation of hostesses, which are not usually informed about, the social security claims them if employed by a lender iS. of zustünden Arbeitnehmerüberlassungsgesetzes.
9
The applicant claims, amend the judgment under appeal and
10
1. order the defendant, on pain of a deadline set for each case of infringement by the court order money is up to 250.000 €, alternatively imprisonment up to 6 Months, or imprisonment up to 6 To refrain months, in the course of trade
11
Employment Agencies in the form of the provision of state personnel to exhibitors at trade fairs under the terms of K in plants 5 and 6 operate to the application, unless and until he does not hold a license for the supply of temporary workers under § 1 Employment Act is,
12
2. order the defendant, to the applicant pre-litigation costs in the amount of 661,16 € plus interest in the amount of 5 To pay percentage points above the base lending rate of the European Central Bank after service of warning,
13
3. determine, that the defendant is required, the applicant for all damages, of these out in accordance with subparagraph 1 prohibited employment arising,
14
4. order the defendant, To provide information on all employment services of hostesses in the time since the 10. September 2012.
15
Sought by the defendant,
16
dismissed the appeal by the applicant.
17
The defendant defends the contested judgment under revision and consolidation of his previous arguments.
II.
18
The appeal is unfounded, because the plaintiff against the defendant no competition or. tort injunctions- entitled and subsequent claims in the coveted scope. Although the defendant operates temporary workers without the required administrative license. However, the applicant can not proceed with success against this, because in the violation of this license requirement neither unfair conduct within the meaning of § 4 No.. 11 UWG is still a violation of other civil law provisions.
1.
19
The defendant operates subject to authorization of temporary workers, as far as he brokered by him fair staff with the Treaty provisions laid down in Appendices K 5 and K 6 binds to.
20
§ 1 Abs. 1 Arbeitnehmerüberlassungsgesetz (AÜG) required, that employers, the third party lender (Borrowers) Employee (Temporary workers) in the course of his business want to leave for work performance, require an official permit. A violation of this provision is punishable by a fine (§ 16 AÜG).
21
Employee is, who bound by instructions and personal dependency on another due to a private employment contract (Employer) is obliged to externally determined performance against compensation (Palandt-Weidenkaff, BGB, 74. Ed, RN. 7 § ago 611 BGB). In terms of employment in a foreign operation is assumed, if the employee is incorporated into it or be subject to a comprehensive instruction of the employer, the on time, Duration, Place and manner of execution relates (vgl. LSG Hesse from 20. 10. 2005 – Exhibit K 10, Tz. 18).
22
The defendant can not rely on, that the contractors / inside in § 1 its terms and conditions will dictate, that "... the contract includes a self-service, which establishes an employment relationship in any way, not subject to social security contributions and he / she commits, his tax matters (Income, Business, To regulate sales tax itself. " (Exhibit K 6).
23
For the legal assessment of the contract, it shall not serve to, how employees are referred to in the contract, but as the contractual relationships are constructed and how they are actually implemented (Palandt-Weidenkaff, cit., RN 10 § ago 611 BGB).
24
From the investment in K 5 so-called pre-formulated Treaty provisions on. "Outfit" the hostess and made of numbers 2), 4 – 5) as well as 8) the respondent in the General Terms and Conditions (Exhibit K 6) results, that the mediated by him fair personnel in terms of location and time of labor input, in relation to the settlement and the context in which they work (appearance, Occurrence, Behavior, etc.) exclusively by the general instructions of the defendant must be addressed. In terms of specific activity in the stands the right of instruction is delegated to the contractor by the defendant. Similarly as in the case decided by the Social Court of Hesse case, the hostesses have no self-determined but a personal undifferentiated here, perform other-directed activity, what qualifies as a "borrowed" workers (LSG Hesse from 20. 10. 2005 – Exhibit K 10, Tz. 21).
25
It does not matter, whether mediated by the defendant fair staff to social security due to the insignificance of employment or not, because this can not affect the legal classification of the contractual relationship as an employment relationship.
2.
26
The licensing requirement in § 1 AÜG is a market-access rule. Violations of market access regulations are of § 4 No.. 11 Recorded UWG, if these standards are simultaneously market conduct rules (BGH 2009, 881, Tz. 14 – About Regional Ambulance Service). Such a (Doubles)function is usually before then, when the operation requires in a given market to a public permission and the relevant standard at the same time in the interest of market partners a certain quality, wants to ensure security or safety of the goods or services offered (vgl. Köhler / Bornkamm, UWG, 33. Edition, RN. 11.49 to § 4 UWG m. In. N.). This protective function have e.g.. regulations, which as a prerequisite for the exercise of certain activities – about medical treatment, other freelance or artisanal activities – require proof special professional skills in order to protect the public (vgl. BGH 2002, 825, 826 – Elektroarbeiten; MünchKomm/Schaffert UWG, 2. Ed, RN 73 to § 4 No.. 11 UWG m. In. N.). This is not the case here but:
A)
27
The provisions of the Employment Act and in particular the in § 1 AÜG fixed license requirement have a social policy objective. They are intended to work,- ensure social security and protection of the licensed employee. This is already in the grounds of the government draft of 15. 6. 1971 to expression, after which the law is intended, produce at the temporary employment relationships, which meet the requirements of social law and exclude the exploitation of the workers concerned (BT-Drs. VI / 2309, S. 9). On the related further comments in the judgment under appeal may be made to avoid repetition. In addition, it need only be observed, that a special qualification of the lender is not required in the application process, it is sufficient, that evidence of their reliability (§§ 2, 3 Abs. 1 No.. 1 AÜG).
B)
28
Worker protection legislation are regularly alone the interests of the employees and therefore does not have the necessary market terms (MünchKomm / Schaffert ibid., RN 62 to § 4 No.. 11 UWG). Workers are not market participants in the market for the products or services, whose production or provision involved they (Harte/Henning/v. Jagow, UWG, 3. Ed, RN 33 to § 4 No.. 11 UWG).
29
The lack of market terms also results from, that the authorization requirement pursuant. § 1 AÜG relates to the internal organization of the lender (vgl. to sack WRP 2005, 531, 540). There is so far a similar situation to the working time protection rules, for social duty or to the health regulations. In all these cases, a reference market is rejected, because a violation of law can the seller only indirectly a competitive advantage over their law-abiding competitors (Köhler / Born-comb ibid., RN 11.36 and 11.38 to § 4 UWG; MünchKomm / Schaffert ibid., RN 62 to § 4 No.. 11, each m. In. N.; Köhler GRUR 2004, 381, 384).
30
For a market reference of employee protection provisions must be added, that they either pursue an immediate market-related purpose, as is the case with the closing arrangements or that they have the Competition aspect, "Dirt competition" in the respective goods- to prevent and services markets, as one might assume it in the rules on the minimum wage (vgl. to Kocher GRUR 2005, 647, 649).
31
Both can be the aim of social policy set out above in § 1 not refer AÜG. Therefore, it does not matter, whether the defendant against the applicant can provide a competitive advantage, because he saves the administrative overhead, connected with the registration of employees with social security and with the accounts of social security and because he achieved also price advantages over law-abiding competitors.
32
Also, by having recourse to the general clause of § 3 UWG can not sanction such violations unfair competition law, because otherwise would the criterion of "conduct on the market usually" lose its contours (vgl. Köhler / Bornkamm ibid., RN 11.36).
C)
33
Es ist nicht ersichtlich, that the lack of official permit the defendant to temporary workers on the quality, affects security or safety of its services and that in accordance with the authorization requirement. § 1 AÜG inherent a market reference in this perspective.
34
The quality of service of a lender depends primarily on the professional competence (and kindness) hostesses employed, and secondarily by the quality of its own services against the borrowers. Both have nothing to do with the administrative license.
35
The applicant relies, although it, that the safety or. Safety of the service is at risk in the absence of official permission, because the defendant its contractors expose a significant risk. Agreements between lenders and borrowers, and between lenders and temporary workers are ineffective, if the lender not to § 1 AÜG has required permit, with the result, that from the beginning of the activity of the temporary worker between him and the borrower is an employment relationship shall come into existence as, its content and length in accordance with the manufacturer's internal regulations (§§ 9, 10 Abs. 1 S. 1 AÜG).
36
That makes for the market regarding the licensing requirements pursuant to § 1 AÜG also no role. Since the legal relationship between lender and borrower in § 12 AÜG are finally regulated and is required because there, that explains the lender to, if he is in possession of the required permit (§ 12 Abs. 1 S. 2 AÜG), enters the o. g. Risk to the borrower a only, if the lender makes on this occasion misrepresentation. Herein perhaps lies an anti-competitive act, but what can not cause, the market access rule of § 1 AÜG attach a market behavioral component.
D)
37
The license requirement pursuant. § 1 AÜG can last even as market conduct standards with respect to the occurrence of a so-called lender on. "Procurement market", D. h. be considered in the competition of the recruitment agency to suitable exhibition staff.
38
While the hostesses love as their provider of labor power market participants on the "procurement market" demand of manpower within the meaning of § 2 The Nr. 3 be UWG (vgl. this Köhler / Bornkamm supra, Rdz. 11.38 to § 4 UWG). Are you offering their labor power but no consumer i. S. by § 2 Abs. 2 UWG. In this respect a teleological reduction of the consumer concept of the UWG is necessary, because the interests and the need to protect a worker in respect of his employment, D. h. as a supplier of its work force radically different and because there intervene priority health and safety regulations on its position as a purchaser of goods and services (vgl. Köhler / Bornkamm, UWG, cit., RN 140 to § 2 UWG; Piper/Ohly/Sosnitza, UWG, 5. Ed, RN 90 to § 2 UWG; MünchKomm / Schaffert ibid., RN 62 to § 4 No.. 11 UWG; A. A. BAG, A 2005, 3305, MünchKomm/Bähr, cit., RN 361 to § 2 UWG). This also follows from Article 2 lit. A) the UCP Directive, whereafter at action for professional purposes, the capacity of consumer deleted.
39
For this reason, the applicant can not rely on the considerations,, the Bundesgerichtshof states in the decision of 31. 5. 2012 (The.: I ZR 45/11, Tz. 46 ff. – Unfair penalty = GRUR 2012, 949) has made, because the local constellation can not be compared with the local.
40
Even taking into account, that the licensing requirements pursuant to § 1 AÜG also serves the interests of hostesses as a player in the market demand, so this may not be enough, the provision as market behavior rule on this "procurement market" to qualify. Otherwise you would namely also all other health and safety regulations consider market conduct rules, but what after the already reproduced previous case-law of the Bundesgerichtshof is not just justified and would function with the unfair competition law also incompatible.
41
It is not clear after all, that provision would have a market-related objectives under this view Wave and it is also not clear, moreover,, that an acting without official authorization employment agencies can provide a competitive advantage over a competitor officially approved in the recruitment of hostesses.
3.
42
The regional court in accordance with law tort claims of the applicant for breach of licensing requirement. § 1 AÜG rejected. To avoid repetition, reference is made to the considerations in the judgment under appeal, which the applicant did not challenge on appeal.
43
The decision on costs follows from § 97 Abs. 1 ZPO.
44
The decision on the provisional enforceability and debtor protection arrangements follow from §§ 708 No.. 10, 711 ZPO.
45
There's not yet been clarified by the BGH, whether and, if so, the circumstances under which workers under the protection of § 2 Abs. 2 UWG fall and whether workers protective provisions, who may affect the demand market for services to, are to be regarded as market conduct, the Senate has approved the revision.