German environmental aid may well continue to warn

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KarlsruheDeutsche Umwelthilfe (DUH) is expected to be able to remunerate and sue businesses that violate consumer protection regulations on a large scale in the future. The highest civil judges of the Federal Court of Justice (BGH) see after first deliberations no reason to challenge the legal standing of the organization, as the Senate chairman Thomas Koch said on Thursday in the trial in Karlsruhe. According to preliminary assessment, nothing speaks for abusive behavior. The verdict is to be announced on 4 July. (Ref. I ZR 149/18)

For many in politics and the car industry, the environmental aid is a red cloth, because it has enforced in many German cities diesel driving bans. She does that as an environmental organization.

The BGH deals with the activities of the DUH in the field of consumer protection. As a so-called qualified entity, environmental aid may be used against companies that violate information requirements, for example. It has the same status as the consumer centers or the German Tenants' Association.

According to its own information, the environmental aid reminds about 30 violations every week and conducts around 400 legal proceedings a year. The revenue they generated made up just over a quarter of the DUH budget, according to the latest annual report just under € 2.2 million in 2017.

Dietrich Kloz, managing director of several Mercedes dealerships in the Stuttgart area, sees profit intentions behind it. "This is a professional business model," he says. Kloz and his Felix Kloz GmbH were able to reach a dispute right up to the BGH, after he himself had been warned against environmental help. The dealership had advertised a new car on the Internet and not informed correctly about fuel consumption and CO2 emissions.

A warning from a guild or institution he would have accepted, says Kloz. "But not from a club that is looking for seven employees to make sure if mistakes are made somewhere."

If courts have serious doubts as to whether an organization is rightly listed as a "qualified institution", they can ask the competent Federal Office of Justice for a review. The BGH has the current status but not before. The essential circumstances were known to the Federal Office. Something new did not arise.

Remains the charge of abuse of rights. The central issue here is whether the environmental aid with the money that it generates through their Abmahn- and complaints activities, may cross-finance other areas of their work. In 2015, for example, of the almost 2.5 million euros raised, only about 1.5 million euros were spent on market surveillance. After deducting fixed costs, there was a surplus of more than € 420,000. According to Umwelthilfe such surpluses flow exclusively into "consumer information and advice".

The other side casts doubt on that. The money also flows into political campaigns outside the purposes of the association, said the BGH lawyer of the car dealership, Brunhilde Ackermann. Kloz also accuses the DUH of setting excessive amounts in litigation. The two directors received handsome salaries.

The judges seem to see no problems here. The fact that profits are achieved is by itself not an indication of abusive behavior, Koch said. But he also indicated that the civil courts in the process could not deal with all objections. For which the environmental aid uses their means, it is more likely to be examined by the Federal Office of Justice.

According to the BGH lawyer of the environmental aid, Norbert Tretter, the DUH has put the surpluses especially in education campaigns, such as nitrogen oxide pollution and diesel cars. That was not alien. The profits simply testified to a consistent pursuit strategy. Without a contractual penalty in the event that a violation repeats itself, an injunction is worth nothing.

Attorney Roland Demleitner, who has represented the DUH in the lower courts, considers the attacks on environmental aid to be politically motivated. "It just does not suit some people in this country that there are civil society organizations that enforce the law," he said. "We all benefit from clean air." To insist on the regulations is therefore "of course lawful".

. (tagsToTranslate) Deutsche Umwelthilfe (t) BGH (t) Diesel driving prohibitions (t) Thomas Koch

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