What is an Abmahnung for accessibility and who can send it?

An Abmahnung comes from competitors, not from the market surveillance authority

An Abmahnung concerning accessibility is a cease-and-desist letter that does not come from a government agency, but from a competitor or industry association that views an inaccessible online shop as providing unfair competitive advantage. In Germany, the Marktüberwachungsstelle der Länder für die Barrierefreiheit (MLBF) in Magdeburg is the market surveillance authority that oversees compliance with the Barrierefreiheitsstärkungsgesetz (BFSG). However, alongside that route stands a second one, which has nothing to do with government: the competition law route, in which parties address each other directly regarding unfair competition.

Those who receive such an Abmahnung typically face a demand for a declaration of cease-and-desist and a claim for costs, often before the MLBF has even taken up a case — that route is in fact faster than any market surveillance authority. This makes the MLBF's low maximum fine of up to €100,000 misleading: it says nothing about the speed and costs of the competition law route running parallel to it. For micro-enterprises providing services, the exemption under the BFSG also applies here (fewer than ten employees and annual turnover of at most €2 million); this exemption is relevant as a defence, even if the sender of the Abmahnung does not mention it of their own accord.

The legal basis: BFSG alongside competition law

The BFSG establishes the accessibility requirement and designates the MLBF as the market surveillance authority responsible for that requirement; this follows from the text of the law itself and from information provided by the MLBF. In addition, there is a practice in Germany whereby competitors and associations use a breach of the BFSG as a basis for claiming unfair competition and send an Abmahnung on that ground — a route that operates independently of the MLBF and leads to action more quickly. The specific statutory provisions that support this competition law route in detail have not been included in the sources reviewed; we therefore make no statement on that matter here.