Federal Supreme Court, 01.09.2010, (Ref. StbSt (R) 2/10)
According to Section 57 (1) StBerG, tax advisors and tax agents must practise their profession independently, on their own responsibility, conscientiously, discreetly and refrain from advertising contrary to their profession. § Section 57a StBerG specifies that tax advisors are only permitted to advertise insofar as it provides factual information about their professional activities in terms of form and content and is not aimed at obtaining an order in an individual case.
In this respect, internet advertising for tax consultants is generally permissible as long as it is not aimed at the placement of an order in an individual case. However, the content of a tax consultant's homepage is partly prescribed by professional regulations and in particular by Section 6 of the German Telemedia Act. This mandatory information includes, for example, the name, address, telephone, fax, email address and, in the case of legal entities, the authorised representatives, and in the case of tax consulting companies, the commercial register and the registration number. If this information is missing, this can be penalised with up to €50,000 in accordance with § 12 TDG (see OLG Munich, 11.09.2003 (Ref.: 29 U 2681/03)).
The Federal Court of Justice has now had to deal with an interesting case of tax consultant advertising in the above-mentioned case.
Facts of the Case The tax consultant in the above-mentioned case was based with his law firm in the south of Lower Saxony. For this reason, he had registered the internet domain "www.steuerberater-suedniedersachsen.de" in 2006 and operated his law firm's website under it. He used this in particular to present his law firm and its employees and to draw attention to events organised by him. As the Chamber of Tax Consultants and Tax Agents of the Regional Court of Hanover considered the domain to be a violation of Sections 57 and 57a StBerG, it issued a reprimand against the tax consultant. However, the Senate for Tax Consultant and Tax Agent Matters of the Higher Regional Court of Celle overturned this judgement and acquitted the tax consultant, but allowed an appeal (Section 129 (2) StBerG). This was conducted by the public prosecutor's office.
Federal Court of Justice: The BGH ruled that the internet domain used by the tax consultant did not constitute unauthorised advertising within the meaning of Sections 57 (1) and 57a StBerG. The tax consultant did not claim any special status for the southern part of Lower Saxony, as the public knew that only one person could secure this domain. Nor does the domain claim that the tax consultant has a unique position for his profession in the region of southern Lower Saxony, as the public knows that there is more than one tax consultant working in this region. Furthermore, there was no risk of "channelling" clients, as the term "suedniedersachsen" was not precise enough to attract all clients from this region to the tax consultant's homepage.
Source: Federal Court of Justice
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