Secondary Ticketing: Two ‘Landmark Decisions’ Obtained In Germany

In the fight against for-profit ticket release in Germany, both the promoters association BDVK and promoter FKP Scorpio have achieved what they describe as victories.

The BDKV has long been working on developing a resale clause that restricts ticket resellers, once it’s contained in the general terms and conditions of the ticket portals.

The clause states that sellers need to refrain from selling tickets on their website for a price higher than the stated ticket price plus a maximum of 25% ancillary costs (e.g. postage, agency fees) if the tickets only give a right of access to the promoter’s contractual partner and if this right of access is only transferable if the third party does not have to pay a price higher than the stated ticket price plus a maximum of 25% ancillary costs.

By accepting the clause contained in the general terms and conditions of the ticket portals, ticket buyers confirm that they are aware that any resale is invalid if they resell the tickets for more than a surcharge of 25% on the original price. 

BDKV had taken German ticket reseller Ticketbande to court, because it breached those terms. In January, the regional court of Hanover had sided with BDKV and ordered Ticketbande to restrict the resale of tickets according to the terms.

Ticketbande appealed, and has now lost in the second instance in front of the Celle Higher Regional Court as well.

As the BDKV points out in a statement: “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 organizers and artists when selling tickets on various ticket portals, including, in particular, Eventim.de. 

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

Ticket reseller viagogo has always maintained that it was perfectly legal to resell a ticket, or give it to someone else, irrespective of terms and conditions. 

Ticketbande had argued that the BDVK 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. 

As BDKV summarises, “The Higher Regional Court found that the goal of a socially acceptable limitation of ticket prices is a legitimate interest of the organizer.”

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

BDKV executive president Prof. Jens Michow, added: “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.”

FKP Scorpio also just published a court success achieved in February at Hamburg District Court, which confirmed that viagogo hadn’t been allowed to sell Ed Sheeran tickets for the singers Germany dates in 2019. 

FKP Scorpio, the promoter of the German Ed Sheeran dates, had secured a  preliminary injunction from the court at the end of 2018, preventing viagogo from reselling tickets for the 2019 Ed Sheeran dates.

This has now been confirmed by the court in it principal proceedings, which makes it legally binding according to a FKP statement.

Viagogo has been fined €10,000 for breaching the injunction.

FKP Scorpio founder and CEO Folkert Koopmans welcomed the court’s decision in a statement. He said the efforts of personalizing tickets, adjusting the terms and conditions, and getting fans on board with it all, have paid off in the end. “We’re willing to continue to take all necessary steps to prevent the black market trade and ticket price usury,” Koopmans said.

FKP Scorpio’s lawyer Markus Reuter believes the court’s decision and fine will have a signaling effect on the industry. He assumes that future fines will be set at much higher levels, forcing viagogo to take court decisions seriously going forward.