In its decision of 9 February 2023 (Ref.: 312 O 42/21), the Regional Court of Hamburg had declared inadmissible a company's bonus programme, which awarded bonus points to nursing staff for the successful placement of pharmaceutical and care products, which in turn could be redeemed for material bonuses. In this respect, the low value of the rewards was missing, so that it was an inadmissible advertising gift according to Section 7 para. 1 sentence 1 HWG.
The plaintiff is a qualified commercial association registered under Section 8b of the German Act against Unfair Competition (UWG). The defendant offered care services and family carers a monthly supply of care aids, delivered in care aid boxes of varying contents. The defendant's bonus programme provided that points could be collected and exchanged for bonuses for successfully recruiting interested parties for the monthly delivery of the care aid box. To this end, nurses should recommend the care boxes to patients or their relatives, hand out information material and complete order forms and an application for reimbursement with the patients or their relatives. If the care insurance company covers the costs, the care service employee is credited with the points. The plaintiff claimed the premium points offered to be constituted an impermissible promotional gift within the meaning of Section 7 para. 1 sentence 1 of the HWG. There is a genuine Risk that the care service employees may be influenced in an inappropriate manner to recommend the care aid boxes not on the basis of their quality, but rather as a result of the bonus points.
On 9 February 2023, the Regional Court of Hamburg ruled (Ref.: 312 O 42/21) that the bonus points and the bonuses were inadmissible promotional gifts under Section 7 para. 1 sentence 1 of the HWG. The premium programme constitutes a product-related advertisement that falls within the scope of the HWG, because specific products are advertised, namely the boxes for care aids, and not the company in general. According to the Regional Court of Hamburg, the fact that the promotional gift relates to the entire range of care aids does not contravene with this. Furthermore, there is a potential for inappropriate influence on the part of the addressee of the advertising. Specifically, care service employees may be guided in an inappropriate manner in their recommendations of the programme to patients by the prospect of later redeeming bonus points, to the exclusion of considerations such as quality and suitability. The defendant's assertion that bonus systems are common in the industry is unsubstantiated as no evidence to support this claim was provided. An exemption under Section 7 para. 1 first sentence, Nos. 1-5 of the HWG does not apply because bonus points are not a ‘trifling matter of little value’ within the meaning of Section 7 para. 1 first sentence, No. 1 of the HWG. The value is determined by the advantage gained by the person being courted, so that in the case of bonus points, it depends on the value of the bonus granted. According to the Regional Court of Hamburg this is the right approach in the present case in particular, given that nursing services interact with potential customers more frequently than the norm. This allows low-value points to be accumulated for higher-value bonuses. Anyway, in this case, the value of the premiums granted was above the low-value limit of EUR 5, - assumed by the court, which is why it was assumed that there had been a violation of the prohibition of grants under Section 7 para. 1 sentence 1 HWG.
Co-author: Katharina Hölle
