Federal Court of Justice, 11.01.2012, Ref.: XII ZR 40/10
The contracting parties often include anti-competition clauses in commercial leases for the letting of shop premises.
These anti-competition clauses are intended to prevent the landlord from accepting prospective tenants from the same line of business or with the same product range in one of his other rented premises in the same building.
If such an anti-competition clause is included in the contract, this is known as "contractual protection against competition". As such clauses are open to interpretation, they must be drafted with particular care.
However, according to established case law, in addition to the contractual protection against competition, there is also a so-called statutory protection against competition, which protects the tenant against competition even without a provision in the tenancy agreement.
The extent of statutory protection against competition is always a question of the individual case. According to the prevailing opinion, protection against competition only exists with regard to the main product range of the respective tenant.
In particular, the distinction between the main and secondary product ranges is a constant source of difficulty.
In the above-mentioned decision of the BGH, the plaintiff asserted claims against the defendant on the basis of contractual protection against competition, i.e. on the basis of an anti-competition clause in the rental agreement.
Facts of the Case:
Tenancy agreement contains anti-competition clause in favour of the tenant
In 1986, the plaintiff concluded a lease agreement with the defendant's legal predecessor for commercial premises in a "medical centre" for the operation of an optician's and hearing aid shop.
Section 14 of the rental agreement contained the following anti-competition clause:
"Competition protection for the tenant is agreed to the following extent:
No further optical and hearing aid shop in properties of "U... in H..."
At the time the contract was concluded, a practice for ear, nose and throat medicine was already operating in the building, which was taken over by the defendant's intervener in October 2005.
The plaintiff, which had initially only operated an optician's shop in the rented premises, expanded its business to include a hearing aid acoustics department on 1 August 2006.
Subsequently, the intervener began to supply hearing aids directly to patients using the so-called "abbreviated supply route". Among other things, the ENT doctor takes over the audiometric measurement and the creation of ear impressions for the fitting and delivery of hearing aids, the fine-tuning of the hearing aids delivered directly to him by the manufacturer and the instruction of the patients.
Due to a competing business, the plaintiff sees a violation of the competition protection clause
The plaintiff saw this action as a breach of the anti-competition clause contained in § 14 of the rental agreement and sought both compliance with the anti-competition clause (claim no. 1) and a declaration that it was entitled to a reduction in rent due to the breach (claims no. 2 and 3). Finally, the plaintiff also asserted claims for damages for loss of profit (claims 4 and 5).
The regional court initially seized sees no infringement, the higher regional court sees an infringement
The Regional Court denied a breach of the non-competition clause and dismissed the action as unfounded.
On the plaintiff's appeal, the Higher Regional Court partially amended the judgement of the Regional Court and granted most of the claims 1 to 3 and the claims 4 and 5 on the merits. The reason for this decision was in particular the supplementary interpretation of the non-competition clause by the Higher Regional Court.
The landlord appeals against the judgement of the Higher Regional Court
With its appeal to the Federal Court of Justice, the defendant is seeking to have the appeal judgement set aside and the regional court decision restored.
Judgment of the Federal Court of Justice:
BGH considers judgement of the Higher Regional Court to be incorrect
The BGH did not follow the opinion of the Higher Regional Court and considered the interpretation of the anti-competition clause by the Higher Regional Court to be legally flawed, as it had failed to recognise the requirements for a supplementary interpretation of the contract.
The prerequisite for a supplementary interpretation of the contract is the existence of a loophole, i.e. an unintended incompleteness of the provisions of the legal transaction, which cannot be appropriately closed by using provisions of dispositive law.
The mere fact that a contract does not contain a provision for a certain situation does not mean that it is incomplete.
The contract could only be said to be incomplete if it lacked a provision that was necessary to realise the underlying regulatory plan of the parties, i.e. an appropriate solution that was in the interests of the parties could not be achieved without completing the contract.
In the opinion of the BGH, the anti-competition clause does not contain an unintended loophole
On this legal basis, the assumption of the Court of Appeal that the anti-competition clause in Section 14 of the rental agreement contains a loophole that needs to be filled would meet with far-reaching legal reservations.
It is true that the plaintiff and the legal predecessor of the defendant could not take into account the possibility of providing patients with hearing aids by the ENT doctor practising in the property when concluding the rental agreement in 1986, because the provision of services in the "abbreviated care route" according to § 126 SGB V was only introduced on 1 January 1989 by the Health Reform Act of 20 December 1988.
Nevertheless, it was not necessary for the realisation of the contracting parties' regulatory plan to extend the protection against competition agreed in § 14 of the rental agreement to the supply of hearing aids by the intervener in the "shortened supply route".
The decisive factor in determining whether the rental agreement contains a loophole that needs to be filled is the extent of protection against competition that the plaintiff could expect when concluding the rental agreement.
Accordingly, the wording of the agreement, on which every interpretation must be based and which the Higher Regional Court also took as a basis for its interpretation, already speaks against the assumption of a loophole.
The legal predecessor of the defendant and the plaintiff had specifically described the protection against competition granted in § 14 of the rental agreement and limited it to the prohibition of renting premises to third parties for the operation of an optical and hearing aid shop.
Accordingly, the plaintiff was primarily to be protected against direct competition from a similar business operation.
The behaviour of the competitor shop therefore did not constitute a breach of contract by the defendant
Thus, in the opinion of the BGH, the intervener's supply of hearing aids in the "shortened supply route" does not constitute a breach of the non-competition clause in Section 14 of the rental agreement.
Source: Federal Court of Justice
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