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German court backs resale price cap

A leading civil court in Germany has backed price cap rules developed by the country’s leading live events trade group in what could prove to be a landmark ruling.

The Civil Senate of the Celle Higher Regional Court adjudged that operator Ticketbande must refrain from selling tickets on its website for a price higher than the stated ticket price plus a maximum of 25 per cent ancillary costs such as postage and agency fees.

In doing so it rejected the secondary ticket market retailer’s appeal after a first instance ruling last year by the Hanover Regional Court following action taken by the Federal Association of the Concert and Event Industry (BDKV) trade group.

Both courts thus backed the resale clause sales condition that has been developed by the BDKV. Under the terms of the clause, ticket buyers confirm that they are aware that any resale is invalid if they resell the tickets for more than a surcharge of 25 per cent on the original price.

Speaking after the ruling, Dr Johannes Ulbricht, BDKV’s lawyer, said: “The resale ban clause we developed is new legal territory. The ruling now gives the organisers clarity for the first time that, contrary to secondary market retailers’ claims, the clause is valid and provides the organisers with a basis to successfully counteract the usury business of secondary market retailers.”

BDKV, which comprises over 500 agencies, tour and concert organisers, said in a statement that this is the first time that a boundary has been defined between the permitted private and commercial resale of tickets. The resale prohibition clause is used by organisers and artists when selling tickets on various ticket portals, including Eventim.de.

“This creates the crucial basis for event organisers to successfully issue cease-and-desist orders in future to admission ticket suppliers with inflated prices and thus also to ticket portals directly,” it said.

The Higher Regional Court decided against Ticketbande’s argument that the clause, as a general term and condition, was surprising and unclear and was therefore invalid.

The Higher Regional Court also rejected Ticketbande’s argument that the clause was invalid under antitrust law because its sole purpose was to exclude secondary market retailers from the market. The court found that the goal of a socially acceptable limitation of ticket prices is a legitimate interest of the organiser.

Prof. Jens Michow, executive president of the BDKV, said: “It is a long road to achieving legal regulation of the secondary ticket market, but through today’s judgment, we have made a decisive step in this direction.”

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