The German Regulation on Services Information Duties (DL-InfoV) entered into force on 17 May 2010, implementing the EU Services Regulation 20067123/EC (DL-RL) into German law. However, the resulting duties to provide information have been disregarded in practice for the most part.
The party obliged to provide information is the party providing services, which can be a natural or a legal person. Services in the sense of the EU Services Regulation include distributive trade services, construction, installation and craftsmen's services, freelance services and business-related services (Art. 4(1) DL-RL in conjunction with Art. 57 Treaty on the functioning of the European Union (TFEU) – ex Art. 50 Treaty of the European Union (TEU)). Although the circle of services providers is a broad one, various branches and activities are excluded from the scope of application, e.g. audio-visual services, gambling, health services and certain financial services. The decisive aspect for the existence of an obligation to provide information is that the services provider has a place of business in Germany, yet the question whether the services are provided in Germany or another European country (including the EEA) is not relevant (Sec. 1(1) and (2) DL-InfoV).
The recipient of the information to be made available by the services provider is the recipient of the services, in which respect the German Regulation does not distinguish between private and commercial recipients. This means that the German Regulation also has to be observed in legal relations between enterprises – even enterprises within the same group of companies.
The duty to provide information has to be satisfied in a clear and comprehensible manner prior to conclusion of a written agreement or, in the absence of such an agreement, prior to provision of the services (Sec. 2(1), DL-InfoV). The information can be provided to the recipient of the services personally or may be made generally available in an easily accessible manner at the place of performance or conclusion of contract, for example in a public posting, or via a website – not necessarily the issuer's own – that has to be indicated (Sec. 2(2), DLInfoV). Insofar as the services are provided in Germany, the information has to be made available in the German language (Sec. 1(4), DL-InfoV).
Information has to be provided about the full name of natural persons, the company name and legal form of legal persons, the address and further data enabling rapid and direct contact to be established, about entries in public registers (e.g. Commercial Register), the responsible supervisory authority in case of activities subject to a permit, about regulated professions, VAT ID number, standard terms and conditions and contractual clauses on the law applicable to the contract and on the venue, on guarantees expanding statutory warranty rights, a description of essential features of the services if appropriate as well as information on professional liability insurance taken out (Sec. 2(1), DL-InfoV). Information also has to be provided on the price and its calculation, or a costs estimate has to be made unless this requirement applies in relations with private consumers on the basis of the Regulation on Price Information (Sec. 4, DL-InfoV).
Although many of the information duties in the German Regulation on Services Information Duties are not new, but were already set out in the existing telemedia legislation, the risk of penalties under competition law in the form of a warning notice or an interlocutory injunction does increase if the information duties are not duly satisfied (Secs. 3 and 4(1)), German Act Against Unfair Competition). For this reason the focus of legal advice in practice will firstly be on the question whether a services provider is subject to the new duties to provide information at all, and secondly on the specific manner of fulfilling those duties in an individual case. On the basis of an analysis of services and business environment, for example, public postings on business premises and in most cases internet information will have to be adjusted.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.