Browse topics

• Governing law

  Name	Law or Code?
  Advertising Directive of the regional media authorities on television ('WerbeRL / Fernsehen')	Code
  Advertising Directive of the regional media authorities on broadcasting ('WerbeRL / Hörfunk')	Code
  German Act against Unfair Competition ('UWG').	Law
  Interstate Treaty on Broadcasting for offers on broadcast media ('RStV')	Law
  Telecommunications Act ('TKG')	Law
  German Telemedia Act ('TMG')	Law
  Federal Data Protection Act ('BDSG')	Law
  EU General Data Protection Regulation ('GDPR')	Law
  German Civil Code ('BGB')	Law
  Law on Drug Advertising ('HWG')	Law

  Note: Providing gambling services without a German gambling license is illegal and may lead to administrative and even criminal offense proceedings. Regular prize promotions do not constitute gambling under German gambling regulations. However, caution is needed if the characteristics of gambling come into play (especially if payment is required to participate in the prize promotion and if winning the prize depends on chance).

  Note: Prize promotions on broadcast media (TV and radio) are subject to significantly fewer rules (under the TMG and RStV) than on non-broadcast media (under the BGB and UWG). This booklet reflects the more detailed requirements relating to non-broadcast media; a careful approach would be to seek compliance with these for broadcast ads as well.

  Last modified 31 Dec 2018

• Extra-territoriality

  The German Agency to combat Unfair Competition (Wettbewerbszentrale) has capacity to bring civil proceedings if the prize promotion is governed by the UWG:

  • The UWG always applies if the prize promotion targets the German market place. That means, German Law is applicable, even if the promoter is based in another country. It is not applicable if the promoter addresses only foreign consumers.
    
    
  • In cases of online prize promotions it might be relevant if the prize promotion has worldwide scope, or is limited to particular market places, eg by using disclaimers on the website or a specific language (not sufficient in case of English language).
    
    
  • Moreover, as a member of the European Advertising Standards Alliance (EASA) and the Consumer Protection Cooperation (CPC), the Wettbewerbszentrale cooperates with foreign authorities in cross-border complaints.

  Telemedia and broadcasting rules are enforced on the basis of the country-of-origin principle, meaning German regulations will not be enforced if the country-of-origin of the respective medium is not Germany.

  Last modified 31 Dec 2018

• Skills competitions

  Yes, prize promotions based on skill (promotional contests also known as 'skill competitions') are allowed, but:

  • Public offers of reward may be subject to further restrictions, especially under sec. 657, 661 BGB; eg the public offer must include a time limitation.
    
    Furthermore, unless other terms and conditions have been agreed, participants who achieve the same result would be entitled to an equal share of the prize. It follows that terms and conditions should be very clear on that point, eg by determining the winner as the one who has not only achieved the correct result but who was the first person to do so.
    
    
  • The UWG does not differ between skill competitions and sweepstakes, so that the same key requirements have to be fulfilled for both (see Other local requirements).

  Last modified 31 Dec 2018

• Prize draws

  Yes, prize promotions based on chance (prize draws also known as 'sweepstakes') are allowed, but ensure:

  • Prize draws or sweepstakes should not constitute gambling under the German gambling regulation. Therefore, no payment should be required to enter.
    
    Note: 'Payment' is interpreted to mean that the participant renders a financial sacrifice in order to obtain a chance to win. 'Irrelevant' amounts are excluded, and participation fees of up to € 0.50 (approx. US$0.56) are considered irrelevant; this would include fees paid to use standard telephone and postal services.
    
    
  • Sweepstakes addressed to consumers should not give the impression that the prize is already won, otherwise the consumer may have a valid claim under s.661a BGB. This would also constitute an unfair commercial practice pursuant to no. 17 of the Annex to s.3 para. 3 UWG.
    
    
  • The UWG does not differ between skill competitions and sweepstakes, so that the key requirements have to be fulfilled for each (see also Other local requirements section).

  Last modified 31 Dec 2018

• Selection of winners

  None, but it is strongly recommended to set out requirements for the selection of winners and the awarding of prizes and restrictions in a terms and conditions document, especially if the promotion will be offered to consumers.

  The terms and conditions have to be transparent for participants before they enter the prize promotion, which means that amongst other things, information must be provided about how winners will be selected (eg by random draw) and notified (eg by email, telephone or regular mail) and what prizes will be awarded and when.

  Last modified 31 Dec 2018

• Judges

  No, there are no particular requirements in relation to judges or judging for skills competitions, but:

  • Any judging process has to be communicated in the associated terms and conditions of the respective competition in a clear and unambiguous manner before entering the competition, so that participants are not misled about the judging process
    
    
  • If the skill competition falls under s.661 BGB, some additional requirements apply, e.g. that the judges have to select the winner competently and adhere to the rules of the skills competition.

  Last modified 31 Dec 2018

• Prizes

  There are no particular restrictions on prizes awarded, however:

  • It must be legal to distribute the prize to the person who wins (e.g. no alcohol/ weapons/ tobacco products to minors); and
    
    
  • Where the prize promotion is directed at minors and requires the purchase of advertised products/services, then the value of the prize should be in the 'usual range' (e.g. a prize value of €5,000 (approx. US$5,600) for each of 100 main prizes is in the usual range according to German case law), in order not to exploit the lack of business experience of minors; otherwise this constitutes an unfair commercial practice pursuant to s.3 para. 2 UWG.

  Last modified 31 Dec 2018

• Registration requirements and fees

  Registration Requirements

  Prize promotions do not require any registration or permit.

  Fees/Taxes payable

  There are no specific taxes or fees for prize promotions in Germany.

  Last modified 31 Dec 2018

• Other local requirements

  In brief, the key requirements, or rather recommendations, for prize promotions addressed to the German market place can be summarized as follows:

  Prize promotions should:

  • Not fall under the German gambling regulations (see Governing law section);
    
    
  • Be clearly identifiable as such;
    
    
  • Not create the false impression that the prize is already won, otherwise the consumer may have a valid claim under s.661a BGB;
    
    
  • Respect the winner's privacy, for instance by publishing their names only in case of explicit approval;
    
    
  • Limit the use of participant's data only for this particular purpose (except where the participants have explicitly consented to the data being used for further purposes, eg email newsletters);
    
    
  • Provide easily accessible terms and conditions, which, themselves, shall ensure clear and unambiguous consumer information concerning inter alia:
    
    
    • The name and address of the promoter;
      
      
    • Any qualifying requirements, including the category of persons entitled to take part or excluded;
      
      
    • How to participate, including possible costs of participating;
      
      
    • Details of each prize and its value; possible follow-up costs (eg costs for picking up a car);
      
      
    • Period of the promotion, especially the closing date;
      
      
    • How winners will be selected;
      
      
    • Where and when the names of the winners will be published;
      
      
    • If participation is conditional on the purchase of products/services or on the use of personal data for advertising issues, this must be stated (for purchase-required promotions directed to minors, please see below).

  Note: If a purchase-required prize promotion is directed towards minors, make sure that (1) the value of the prize is in the usual range, in order not to exploit the lack of business experience of minors (please see Prizes section); and (2) the prize promotion is not linked to the use of personal data for advertising purposes.

  Note: Significant conditions, or information which, if omitted, is likely to mislead, must be communicated before purchase, or, if no purchase is necessary, before entry into the promotion.

  Note: Within the scope of s.6 para 1 no. 4 TMG the promoter may be obliged to fulfill further information requirements. Broadcasting rules pose further requirements (s.8a RStV) as well as telecommunication rules (TKG).

  Note: In case of space limitations, eg twitter/ banner ads or TV spots, it is recommended to include as much information as possible and apart from that to point out where the full terms and conditions can be obtained.

  Note: There are particular restrictions for prize promotions in regard to pharmaceuticals (s.7 and s.11 of the HWG).

  Last modified 31 Dec 2018

• Timing

  No.

  Last modified 31 Dec 2018

• Translations

  Supporting terms and conditions must appear in German in order to be clear and unambiguous for participants in Germany.

  Last modified 31 Dec 2018

• Penalties for non-compliance

  In the case of infringement of the provisions of the UWG, the consequences are predominantly of a civil law nature. Possible civil claims are e.g. injunctive relief (s.8 UWG), damages in the event of intent or negligence (s.9 UWG), and reimbursement of the costs of the warning letter (Abmahnung) (s.12 para. 1 sentence 2 UWG).

  Note: The reimbursement of the costs for a warning letter generally range between €2,000 (approx. US$2,240) and €4,000 (approx. US$4,480).

  Fines and penalty provisions only apply in very special cases (e.g. promoting) prize promotions via telephone towards consumers without the prior explicit consent, s.20 UWG or by public notices, sec. 16 UWG.

  In case of non-compliance with s.8a RStV and the GWS (ie if the stake for a prize promotion on broadcast media exceeds €0.50 (approx. US$0.56)) this results in an administrative fine of up to €500,000 (approx. US$560,140), depending on the gravity of the offense (s.49 para. 1 sentence 2 no. 5 RStV). First time offenders with only a violation within one promotion may expect a fine of €5.000 (approx. US$5,600).

  Breaches of the BDSG constitute an administrative offense punishable with an administrative fine of up to € 300,000 (approx. US$336,000), depending on the gravity of the offense.

  Note: On 25 May 2018, the General Data Protection Regulation (GDPR) of the European Union came into force, which substantially increased the administrative fines for data protection breaches with fines of up to €20,000,000 (approx. US$22.4m) or 4% of the total worldwide turnover of the infringer from its preceding business year.

  A breach of s.7 or 11 of the HWG constitutes an administrative offense with an administrative fine of up to €50,000 (approx. US$56,000) depending on the gravity of the offense).

  Last modified 31 Dec 2018

• Restrictiveness of regulations

  As there is no registration requirement for prize promotions in Germany, and the distinction from illegal gambling is quite clear as well as the rules governing the legal scheme/set-up for prize promotions, we do not assess the legal obligations under German law as onerous.

  However, please note, that the general rules on the validity of general terms and conditions (governing the conditions for participation in a prize promotion) as well as the German data protection rules are in our experience comparatively strict in comparison to other jurisdictions (eg UK and the US). Therefore, it is very important that the rules for prize promotions are reviewed in regard to these issues prior to being published/put on the market.

  Last modified 31 Dec 2018

• Regularity of sanctions

  Administrative offenses under the RStV, BDSG and HWG are regularly prosecuted by the competent authorities.

  Non-compliance under the UWG or BGB is regularly prosecuted under civil law, likewise by competitors or the Wettbewerbszentrale.

  Last modified 31 Dec 2018

• Key contacts
  

  Kai Tumbrägel

  Partner DLA Piper UK LLP [email protected] T +49 221 277 277 242 View bio

  

  Saskia Laïs-Jansen

  Counsel DLA Piper UK LLP [email protected] T +49 221 277 277 243 View bio

  

  Beatrice Brunn

  Counsel DLA Piper UK LLP [email protected] T +49 40 188 88 201 View bio