FC Union Berlin v Viagogo (91 O 56/24)

1. CASE SUMMARY

A. Summary of facts

1. FC Union Berlin, a professional football club in the Bundesliga, sued Viagogo, the operator of a secondary ticket marketplace. The platform enabled the sale and advertising of tickets for the club's home matches. However, under Section 1.9.2 of the club's General Terms and Conditions for Ticket Sales, the unauthorised resale of tickets is prohibited and personalised tickets are invalidated upon such transfer. The platform failed to prominently inform consumers that these tickets might not grant them entry to the stadium.

B. Legal analysis

The court held that a football club does not infringe the rules on abuse of dominance or the prohibition of abuse of economic dependence under the German Act against Restraints of Competition (‘ARC’) by prohibiting the onward sale of personalised tickets. Such a restriction is justified as it prevents that the purchaser is denied access at the stadium.

Furthermore, the court found that the failure to clearly inform consumers about ticket personalisation and the associated risk of being denied entry constitutes the withholding of material information under Sections 5 and 5a of the German Unfair Competition Act (‘UCA’). This omission constitutes a misinformation of the consumer.

2. QUOTES

"The personalisation of an event ticket does not violate the rules on dominance and economic dependence under Section 19, 20 and 21 ARC as it is justified to prevent that the purchaser is denied entry to the stadium. The use of a personalised ticket by a person other than the authorised individual named on the ticket exposes the user – that is, the purchaser via the defendant’s website – to the risk of being refused entry to the home match in question. This risk may materialise in rather rare cases, regarding which the parties have not provided any further details. However, should it materialise, it constitutes a considerable disadvantage and loss for the purchaser, who has paid what is now often a three-figure sum in euros for the ticket and incurred further expenses in order to attend the event." (free translation)

3. RELEVANT LEGISLATION

• Sections 19, 20 and 21 ARC

4. PRACTICAL SIGNIFICANCE

This judgment confirms that a prohibition on the onward sale of personalised tickets by football clubs does not constitute an infringement of the rules on dominance or economic dependence under German competition law.