EBN European Business Number scam - Part 3 - Gorila's findings

Update 25th June 2019: EBN scammers bankrupt

The text below is a comment from Mr.(?) Gorila to my previous EBN scam post, he kindly translated a German article from year 2011 to English reading audience. Given the length of the text, I'm posting the un-altered comment here. I did add the emphasis for subtitles to make the article easier to read.

Why this is important, is of course the legal precedent. EBN-scammers sued somebody and lost!
So: DO NOT PAY! You will win your case in court.

So, to repeat, the text below is not mine, but I think it being very valuable for the people following EBN scam case.

Indeed, Legal German language is very difficult to translate into English. However, in 2010 there were many German articles addressing this court decision. Language of journal articles is simpler and easier to understand. Yet that article is informative and precise enough to conwey the court ruling message to general public.

Here is a good one, with translation below (Please note, that the translation is not literal to avoid German idioms and phrases inconsistent with English language):
http://www.kostenlose-urteile.de/LG-Hamburg_309-S-6610_LG-Hamburg-zu-Branchenbuchabzocke-Eintragungsformular-Datenaktualisierung-2008-des-DAD-Deutscher-Adressdienst-erfuellt-Straftatbestand-des-Betrugs.news11513.htm

Judgement of Regional Court Hamburg (Urteil vom 14.01.2011 - 309 S 66/10)

Regional Court Hamburg on Business directory rip-off:
Registration form "Data update 2008" of the DAD German Address Service constitutes criminal offense of the fraud

Due to an overall view of the court considers the intent to be deceive

The district court Hamburg has confirmed the complaint of a customer in second instance, who had sued against the DAD Deutscher Adress Dienst. This had taken the customer into the Internet address register at www.DeutschesInternetRegister.de, without making it clear that the entry was subject to a charge. The customer should pay 2,280.04 euros for the entry. The customer hired a lawyer with whom he went to the court. There, he sued for decision that he was not required to pay and for reimbursement of his legal fees. The district court Hamburg Barmbek gave the customer right. The district court Hamburg confirmed the judgment in the appeal.

Defendant is a business directory DAD with about 1.2 million registered companies. The vast majority of the registered are of free entries, which DAD has copied from publicly available sources. The customer received a letter from DAD, entittled "Data Update 2008". The letter requested a review of the existing and updated if necessary. It was also said: "The registration and updating of your basic data is free."

Only at the end of the form was an indication of the costs

An employee of the company then entered missing data on the pre-printed form and sent it to DAD as did a large number of authorities and tradespeople. Latter the company received an invoice for 2,280.04 euros for the entry with reference to a cost indication in the lower quarter of the form (annual price of 958 EUR plus VAT).

Deception about actual costs is fraud

The district court Hamburg evaluated this in its judgment as fraud. This does not change the fact that DAD has quite specifically indicated the cost-bearing nature of the offer in the letter. Rather, it is decisive that the possible act of deception in fraud is not only the pretending of false facts or the disfiguration or concealment of existing facts. Moreover, any behavior other than deception is also considered, provided that it may provoke a mistake on the part of the other person and influence the decision to make the desired declaration of intent.

Deception exists when the victim of fraud, knowing all the circumstances, would act differently

On the other hand, it was not decisive whether the deceived person followed the care required in the course of business dealings or even acted negligently with regard to the ommission of certain contractual information. Insofar as the error on the part of the customer has been triggered by a legally relevant deception. The customers claims do not fail because the error is caused by his own negligence in dealing with advertising mail.

The nature and design of the form produce erroneous ideas

In particular, in cases where the author of a contract offers, by presentation and formulation, a kind of design, which should cause the addressee has erroneous ideas about the actual supplied parameters. A deception can be assumed even if the true character of the letter could be recognized after careful reading. This also follows from a judgment of the Federal Court of 26.04.2001, Az. 4 StR 439/00. The respective deception must have been used according to plan and was not merely a consequence, but the purpose of action.

Costs notice at the end of the form could be overlooked by the customers

According to the Federal Court of Justice, in the case of a merely misleading presentation in the offer letter, it is above all a matter of how strongly significant contractual parameters are presented, distorted or edited. In the present case of DAD, the non-binding appearance of the request for review and correction of well-known data can caused that the price will be at least overlooked by some customers.

Form gave the impression of already existing contractual relations

Finally, another indication of the intended deception was that the form had already been pre-filled with the customer's data. Such an approach was apt to give the recipient the impression that it was not a novel business relationship but that it was intended to maintain or extend an existing contractual relationship.

Simple online entries usually cost no 2,280 euros

It is also crucial that none of the addressee with a total cost of over 1,900 euros for a simple online registration have to expect. With this reasoning also the district court Heilbronn decided by resolution of 23.06.2010, Az. 3 S 19/10 in a similarly stored case.