It is therefore all the more important to exercise great care before submitting such an undertaking. According to settled case law, any infringement of competition law gives rise to a presumption that the infringement may be repeated. This so-called “risk of repetition” can, in most cases, only be eliminated by providing an enforceable cease-and-desist declaration that includes a contractual penalty clause. As a rule, the wording of such an undertaking is proposed by the party issuing the warning notice. If the recipient accepts that wording without modification – even where it extends beyond the specific infringement in question – this may have far-reaching consequences.
The Fourth Civil Senate of the Higher Regional Court (Oberlandesgericht, OLG) Hamm, responsible for competition matters, recently reaffirmed this principle (judgment of 15 April 2025, 4 U 77/24). The operator of a swimming pool had been warned by a consumer protection association for using an invalid clause in its general terms and conditions (AGB), according to which guests were required to pay a lump-sum compensation if they lost locker keys or similar items. The warning letter included a pre-formulated undertaking to cease and desist from using the criticised or – crucially – any equivalent provision. The pool operator signed the declaration without any amendments and agreed to pay a contractual penalty in the event of breach.
Several years later, the pool introduced a new provision stating that in the event of the loss of a (by then newly introduced) chip coin, guests were merely required to pay a security deposit, which would subsequently be offset against the stored value on the lost chip.
The consumer association sued for payment of a contractual penalty. The Regional Court (Landgericht, LG) Dortmund dismissed the claim, holding that the new clause was not equivalent in substance to the one covered by the original undertaking.
The OLG Hamm overturned that decision and ordered the pool operator to pay a contractual penalty of EUR 4,500. The court held that the new clause was substantively equivalent to the previous one within the meaning of the undertaking given. Whether two clauses are equivalent depends on whether the amendments affect the essence of the prohibited conduct. The scope of the undertaking must therefore be determined by interpretation. If an undertaking is given in the exact wording proposed by the warning party, it is presumed that the declarant intended to bind itself to the full extent demanded and to cease all conduct associated with the criticised clause. Even if the later wording differs linguistically, the operator had contractually undertaken to refrain from such formulations, as the declaration had been given without any limitation or reservation.
The decision illustrates that the content of any cease-and-desist declaration must be carefully considered. One should never follow the wording proposed by the opposing party “blindly”. The unqualified adoption of a pre-drafted declaration may lead courts to conclude that a particularly far-reaching commitment was intended.
While we may not be able to assist in choosing the right life partner, we are more than happy to support you in drafting a cease-and-desist undertaking that does not bind you for eternity.