Competitor Lawsuit

from Wikipedia, the free encyclopedia
This article or paragraph presents the situation in Germany . Help us to describe the situation in other countries.

A competitor lawsuit is usually a legal dispute under administrative law in which private individuals seek protection from their (economic) competitors before the administrative courts .

In the case of competitor lawsuits in administrative law, an individual usually takes legal action against the state , but indirectly against another private entity with whom he is in competition .

Differentiation according to claim objectives

One differentiates between the different thrusts of the competitor's action in a triangular relationship. It has become common to distinguish between offensive and defensive competitor lawsuits on the one hand and negative or positive competitor lawsuits on the other.

  • Defensive competitor lawsuits aim to defend against a government measure in defense of the existing competitive situation.
  • Offensive competitor lawsuits aim to change the competitive situation through a state measure.
  • Negative competitor lawsuits are those in which a competitor takes legal action against a state favoring the competitor.
  • Positive competitor lawsuits are those that are pending in the form of an administrative court obligation .

Case groups

Several case groups can be roughly distinguished:

Competitor lawsuits in connection with the professional admission system

These are cases in which applicants who have not been taken into account oppose this disregard for the admission or assignment of professions requiring admission . If someone else has been approved in their place, there is a negative competitor action if the person not taken into account objects to this approval and believes that he should have been approved instead. Problems arise, for example, when the approvals are limited. In particular, cases of approvals in the health sector are conceivable. There were also frequent complaints from competitors for permits in road haulage law and passenger transport law. Likewise, in trade law , “outsiders” often try to defend themselves against long-established master craftsmen in an administrative court. Administrative court conflicts are also inevitable in the area of ​​the appointment of experts if a new expert is admitted alongside the old one and the old experts fear that they will lose this turnover.

Competitor lawsuits for admission to institutions and public institutions

If the admission to public institutions is made through an administrative act and the capacity reaches its limits, then there are often conflicts between successful and unsuccessful applicants for admission.

Competitor lawsuits on the occasion of the award of services and subsidies by the public sector

In the context of performance management, the public sector grants, among other things, benefits, grants and subsidies . This is not always done according to the watering can principle . However, since the recipients of these services are often in competition, processes can also be expected here if one competitor is promoted but the other is not.

Competitor lawsuits against the participation of the public sector in commercial transactions

Municipal companies in particular often compete with private companies in the market. The participation of municipal companies in the competition is only permitted to a limited extent according to municipal laws. Insofar as the municipal companies operate in an unlawful manner in a competitive manner, the private entrepreneurs try - usually unsuccessfully - to have the municipal companies prohibited by an administrative court.

Competition problems in the award of public contracts

Another problem area is the disputes over the mostly lucrative public contracts. This problem is regulated by public procurement law.

Competitor lawsuit in civil service law

Competitors for a job after the Civil Service Law is awarded, often try to fill the post with a competitor if alleged inequality in the legal process to challenge. Because of the formal need for such civil servant personnel decisions (appointment by administrative act ) in the interest of the stability of the office , the unsuccessful job applicant has to prevent this by means of temporary legal protection before the competitor is appointed . The application to the administrative court is usually directed to provisionally avert the appointment of the selected official. However, under certain circumstances the transfer of the position to the competitor can be prevented. The competitor's action in the main proceedings is usually only aimed at annulling the selection decision, but not at one's own selection. Such a lawsuit would have to show that no other selection decision would be lawful. This is practically never the case. In proceedings for interim legal protection, the unsuccessful applicant does not have to make plausible that he was the more suitable candidate for the position to be filled. He only has to prove that the selection process suffered from errors and, had the process been lawful, he too could have been selected.

In the wake of complaints of Judge Thomas Fischer in 2011, the blockades of Senates took the German courts, so that is likely in 2015, a Special Division of the Federal Administrative Court to establish that deals exclusively with competitors actions in order to speed up the legal process and To increase legal certainty.

Competitor lawsuits in tax law

Since the main framework conditions of competition are set by tax law and, especially in German tax law, economic-steering aspects often shape tax law, there are also problems when one competitor is given tax advantages over the other. As “hidden subsidies”, tax breaks often pose the same problems as the granting of open subsidies. However, the institute of the “tax law competitor lawsuit” has hardly been able to prevail in practice. This often has to do with the fact that, due to tax secrecy, no overview of the competitor's taxation is possible. However, this could soon change, as the Federal Fiscal Court has now stated that tax secrecy does not prevent the disclosure of information.

Antitrust problems

Competitor lawsuits in antitrust law are regulated in accordance with the civil law law against restraints of competition (GWB).

Legal problems

Legal problems of the competitor lawsuit arise above all with regard to the right to bring an action required according to Section 42 (2) VwGO . According to this, the plaintiff must be able to assert that his rights have been violated, ie according to the so-called possibility theory , that he must be able to prove the possibility of the violation of his rights. In addition, according to Section 113 VwGO, the action is only well founded if the plaintiff's rights are actually violated. According to the protection norm theory in German law, a subjective public right only exists if a mandatory legal clause of public law aims at least to protect individual interests and grants the beneficiary the legal power to enforce the protected interests against the administration . The mere fact that a norm is violated that only protects the individual in the sense of a reflex effect cannot therefore be inferred as a violation of one's own rights. As a result, negative competitor complaints are often inadmissible. In many cases, however, it also appears to be possible, according to case law , that the fundamental right to freedom of occupation may be violated by the challenged state measure or state omission. In this case, legal standing can result from the fact that the simple law is interpreted as protecting third parties in the light of the fundamental right (norm-internal effect of the fundamental rights) or by inferring the right to bring an action directly from the basic right (norm-external effect of the fundamental rights).

Competitor lawsuit in university law (Austria)

The competitor lawsuit plays an important role in university appeal procedures . It serves not only to protect individual legal rights, but also to ensure high quality appointments.

Unlike in neighboring countries, there are no competitor lawsuits in university appointment procedures in Austria. The Austrian Universities Act 2002 (UG) leaves the legal nature of the appointment procedure open. On the one hand, it is undoubtedly an administrative procedure, which, however, leads to a contract under private law. After years of negative conflict of jurisdiction between the ordinary courts and the courts of public law, the Austrian Constitutional Court (VfGH) assigned the relevant jurisdiction to the ordinary courts on June 13, 2017 (KI 1 / 2017-14). However, these still do not actually exercise this jurisdiction. For example, the Austrian Supreme Court ruled on September 27, 2018 (9 ObA 83 / 18y) and again with a resolution of November 28, 2019 (9 ObA 122 / 19k) that an applicant, the error in an appeal complains that there is no interest in legal protection in order to take legal action against the contract concluded by the university with another applicant, even if the deficiencies in the appeal procedure (in particular biases) are correct. There is no individual legal protection.

The Austrian Ombudsman's Office for the Control of Public Administration and Compliance with Human Rights independently confirmed and criticized this legal deficiency in the 2018 annual report published on April 24, 2019: There is no effective legal protection in university appointment procedures in Austria, i.e. H. “No possibility of bringing about an administrative or civil court review of defective appeal procedures.” This fact is both unconstitutional and EU law, because a discriminated applicant, insofar as it is a Union citizen, his right to freedom of movement according to Art. 45 TFEU with his application (Treaty on the Functioning of the European Union) . He has the right to an effective application and a legally correct procedure. The right to freedom of movement does confer individual rights. Biases violate the principle of good administration and their removal is therefore also required under Union law. The right to good administration is a general legal principle of Union law, cf. Art. 41 GRC (EU Charter of Fundamental Rights) . Union citizens who apply for a university professorship in Austria can refer to the EU Charter of Fundamental Rights (GRC) and thus have the right to an effective legal remedy in accordance with Art. 47 GRC . Since this is a directly applicable Union law, the Austrian courts would have to apply these rules immediately, although the obligation of the Republic of Austria to adapt university law to the requirements of Union law remains in effect.

As long as this adaptation to Union law does not take place, this EU law violation can be complained about via a submission to the ECJ (European Court of Justice) by means of a preliminary ruling procedure (highest courts are obliged to do so) or via an autonomous action by the EU Commission by way of infringement proceedings .

literature

Individual evidence

  1. ↑ Ursula Knapp: Blocked federal courts. In: Frankfurter Rundschau. March 21, 2015, p. 5 , accessed May 6, 2019 .
  2. ↑ Ursula Knapp: Competitor lawsuits in German federal courts. In: Legal Tribune Online (LTO). October 9, 2015, accessed May 6, 2019 .
  3. ↑ BFH judgment of October 5, 2006, Az.VII R 24/03.
  4. ^ Benedikt Kommenda: University appointments: VfGH ensures legal protection for applicants who have been passed over. In: The press. July 9, 2017, accessed May 6, 2019 .
  5. ↑ VfGH decision of June 13, 2017, Gz. KI 1 / 2017-14, ECLI: AT: VFGH: 2017: KI1.2017.
  6. ↑ Supreme Court decision of September 27, 2018, Gz. 9 ObA 83 / 18y, ECLI: AT: OGH0002: 2018: 009OBA00083.18Y.0927.000.
  7. ^ OGH decision of November 28, 2019, Gz. 9 ObA 122 / 19k, ECLI: AT: OGH0002: 2019: 009OBA00122.19K.1128.000.
  8. ↑ Annual report of the Ombudsman Board to the National Council and the Federal Council 2018: Control of the public administration, pp. 114–115.
  9. ↑ Paolo Piva and Gilbert Gornig: University appointment procedures - a legal criticism. In: Wiener Zeitung. May 28, 2020, accessed May 29, 2020 .
  10. ↑ Gilbert Gornig and Paolo Piva: Freedom of movement of university teachers in the EU - the problem case Austria (=  European Journal for Business Law (EuZW) . Volume 31 , no. 11 ). CH Beck, June 16, 2020, ISSN  0937-7204 , p. 469-476 .