Poaching
The term poaching generally refers to the effort to win employees or customers of another company for your own. Accordingly, the topic is particularly relevant in labor and fair trading law .
Evaluation of fairness law
Under certain circumstances, the poaching of employees or customers can be anti-competitive and thus by § 4 No. 10 i. V. m. § 3 UWG may be prohibited.
Poaching of employees
The prevailing opinion has basically no reservations about the poaching of employees, which is normally carried out through the use of headhunters . After all, fighting for the best employees can be seen as an expression of free and healthy competition. The workers' right to mobility ( Article 12, Paragraph 1 of the Basic Law ) must also not be disregarded. Conversely, however, no employer has to tolerate that others intervene excessively in its operational processes.
The solicitation may be unfair because of its purpose or the means used.
A reprehensible purpose is to be assumed if the solicitation primarily serves to hinder the competitor in a targeted manner. This can be assumed if the entrepreneur himself z. B. has no use at all for the poached person or only wants to gain access to business secrets of the competitor through them.
Unfair means of soliciting are in particular the induction to breach a contract (for example by assuming contractual penalties ; however, not the mere exploitation of a breach of contract) or direct approach at the workplace that goes beyond initial contact.
Poaching customers
Customers can also be turned away from competitors. Here, too, it should be emphasized that this is fundamentally harmless, since in competition it is ultimately always about winning customers, of course inevitably at the expense of others. Here, too, the limit forms the temptation to breach the contract. However, dismissal assistance is allowed.
Catching customers
The touting is a special form of poaching from existing customers, where the contractor is - metaphorically or actually - situated between the customers and the competitors and directs them specifically in their own business. One example is sticking over someone else's posters. However, the BGH does not consider the use of third-party brands as AdWord to be unfair. Intercepting potential customers is also generally louder. Because there is no right to potential customers and thus to economic income. This group of cases of Section 4 No. 4 UWG (targeted disability) should only be used as an exception and justify the unfairness. The prerequisite for this is the attribution of potential customers to a certain (individual) entrepreneur and then the change of this allocation and attribution by the competitor. Usually, however, the attributability is already missing, because the mere interested party is neither already inclined to one nor to the other competitor in the sense of a z. B. Decision to initiate a contract for this instead of that competitor / provider.
Employment law evaluation
Poaching of colleagues by an employee can have an important reason: i. S. d. § 626 BGB and authorize the employer to terminate the employee without notice . The solicitation does not have to be reprehensible or carried out with unfair means, it is sufficient that it is carried out with a certain seriousness and perseverance.
Individual evidence
- ↑ Piper / Ohly / Sosnitza, Law against Unfair Competition, 5th edition, § 4 Rn. 10.22 ff.
- ↑ BGH, judgment of March 4, 2004, Az. I ZR 221/01, full text , BGHZ 158, 174 = GRUR 04, 696 - direct contact at work I.
- ^ BGH, judgment of April 7, 2005, Az. I ZR 140/02, full text , GRUR 2005, 603 - Kündigungshilfe; Köhler / Bornkamm, UWG. 30th edition, § 4 UWG margin no. 10.39.
- ↑ BGH, judgment of January 13, 2011, Az. I ZR 125/07, full text , NJW 2011, 3032 - Bananabay II.
- ↑ Wüstenberg: The competition of the passenger transporters for the potential customers at the bus stop - unfair exploitation of a foreign facility? Ed .: Law of the Transport Industry. 2016, p. 292-299 .
- ↑ ErfK / Müller-Glöge 13th edition, § 626 BGB margin no. 62.
