Competition law regulates economic competition and the behaviour of competitors on the free market. It consists of the unfair competition law and the cartel law. In everyday business life, primarily the question regarding unfair competition (in the sense of insincere behaviour) arises, if an undue discrimination by the competition is suspected. Today, terms such as “competitor” and “market players” are popular to circumscribe the competition situation. It is often quite difficult to keep an overview on the legal situation as the reading and application of the federal law against unfair competition (UWG) is largely determined by supreme court decisions in Austria and Europe. In economic competition, not only legal certainty is necessary, but also fast action. Thanks to their decades of experience, our lawyers guarantee that the right steps are taken – even under time pressure.
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Whoever applies unfair business practises or other unfair behaviour in commercial transactions which is suitable to considerably influence the competition to companies´ disadvantage, can be sued for injunction.
Also someone who applies unfair business practises which contradict the requirements of professional diligence and are suitable to considerably influence the economic behaviour of an average consumer whom it reaches or to whom it is addressed, can be sued for injunction.
Especially aggressive or misleading business practises toward customers´ interests are considered to be unfair behaviour.
Apart from that there is also an amendment to the federal law against unfair competition, in which unfair practises are stated.
These for example include
Furthermore, in the so-called “large” general clause, the legislator extensively describes under which circumstances one can sue for injunction of unfair behaviour resp. business practise.
What must also be noted is that primarily the competitors (apart from some chambers and economic advocacy groups) are entitled to file a lawsuit at the regional court in charge resp. at the commercial court in Vienna, but not the customers. As an advocacy group for consumers, however, the consumer advocacy group Austria is entitled to sue for injunction.
Fair competition is desired and presupposed by the legislator. In one´s own interest, however, every entrepreneur should avoid unfair behaviour because with such a violation of the competition law, he/she risks a lawsuit including a preliminary injunction. This can obstruct his/her business until the lawsuit regarding unfair competition is completed and can mean substantial financial losses. Also the costs of such proceedings are quite high.
Whether due to culpable behaviour there are legitimate claims for damages for one or several competitors is not the primary prerequisite for an injunctive relief, removal and publication of judgment according to the regulations of the UWG. However, a sentence based on the UWG can also award damages in case of culpability.
Business practises are misleading if people are lured into making a different business decision than they would make if they knew the true factual situation.
Business practises are considered to be aggressive, if they considerably impair the consumers´ business decisions regarding an advertised product. This is for example the case if the advertising company exerts undue pressure in the form of harassment, coercion or by undue manipulation.
The federal law against unfair competition (UWG) wants to avoid manipulated decisions and wants to enable an informed business decision by consumers.
If a direct call is directed at children to buy a product or if children are directly prompted to convince their parents or other adults to buy the advertised product (e.g. “Get your sticker book”), then that is considered unfair advertising. People up to the completed 14th year of life are considered to be children in the sense of this law.
Comparative advertising means advertising praising. Thereby, one´s own offer is highlighted and connected with the referral to a person, good or service of one or several explicitly mentioned or at least recognisable competitors. As no one emphasizes disadvantages of one´s own service, this referral pursues the purpose of highlighting one´s own offer as being better. The guidelines for comparative advertising contain a catalogue of conditions. If the contained negative prerequisites are fulfilled, comparative advertising is admissible. The UWG implemented this “catalogue of conditions” with the amendments 2007 and 2015.
First of all, it has to be investigated whether these charges are legitimate. This can only be determined or at least assessed by consulting a lawyer with experience in competition law. The legal texts are often worded very generally and leave the court a lot of leeway for interpretation. Knowledge of supreme court decisions in comparable cases are the essential basis for the assessment of the situation and the defence at court.