Profit skimming
In German law, profit skimming is understood to mean various sanctions for unlawful behavior in which the infringer gains an advantage. This is to ensure that a legal violation is "not worthwhile".
Profit skimming under fair trading law
The profit skimming claim anchored in § 10 UWG is a sui generis claim . It is not a claim for damages or enrichment and can not be combined with the extended forfeiture i. S. d. Section 73d of the Criminal Code. The profit skimming was introduced into the UWG as part of the 2004 amendment. Above all, it should be a tool against so-called scattered damage. These are case constellations in which a large number of customers are damaged by anti-competitive behavior, but the amount of damage in individual cases is low, so that a single person affected often has no incentive to take action.
Offense
The norm assumes an intentional violation of § 3 or § 7 UWG. The infringer must have made a profit at the expense of a large number of customers. The profit is the improvement of the company's financial position through the violation. Since the standard only speaks of customers , damage to the detriment of competitors or suppliers is not recorded. The claim may only be asserted by the "persons entitled to assert an injunction claim in accordance with Section 8 (3) No. 2-4", such as the competition center .
Legal consequence
The profit is to be surrendered to the federal budget. Of course, this is not a great incentive for private enforcement , which is also one of the main criticisms of the regulation.
Antitrust profit skimming
The § 34a GWB introduced in 2005 , the right to skimming off benefits , is a twin provision of § 10 UWG in antitrust law.
Preventive profit skimming
The preventive profit skimming (PräGe) is a means of securing tortiously obtained profits by the police and regulatory authorities .
Profit skimming as a sanction
When setting a fine for an administrative offense , the benefit gained should be the lower limit of the assessment ( Section 17 (4) OWiG). The person concerned should not only have no economic advantages from the act, but should also have to accept a loss. This is a bound discretionary decision.
According to § 29a OWiG or in a criminal court judgment, the forfeiture and the confiscation of objects and assets obtained unlawfully through the act can be ordered ( § 73 StGB).
Individual evidence
- ^ Harte-Bavendamm / Henning-Bodewig, UWG. 2 ed. § 10 marginal no. 11 ff.
- ↑ See justification for the law BT-Drucks. 15/1487 (PDF; 627 kB).
- ↑ Köhler / Bornkamm, UWG. 30 ed. § 10 marginal no. 7th
- ↑ Stadler / Micklitz WRP 2003, 559, 562: "beautiful colorful paper tiger".
- ↑ In addition: Alexander, Market control through skimming claims, JZ 2006, 890.
- ↑ OLG Karlsruhe, decision of July 3, 1974 - 3 Ss (B) 46/74 - NJW 1974, 1883.
- ↑ In detail: Krumm, NJW 2011, 196.
