Law against Unfair Competition

from Wikipedia, the free encyclopedia
Basic data
Title: Law against Unfair Competition
Previous title: Law to Combat Unfair Competition
Abbreviation: UWG
Type: Federal law
Scope: Federal Republic of Germany
Legal matter: Competition law ,
industrial property rights
References : 43-7
Original version from: May 27, 1896
( RGBl. P. 145)
Entry into force on: July 1, 1896
New announcement from: March 3, 2010
( BGBl. I p. 254 )
Last change by: Art. 5 G of April 18, 2019
( Federal Law Gazette I p. 466, 472 )
Effective date of the
last change: 		April 26, 2019
(Art. 6 G of April 18, 2019)
GESTA : C037
Weblink: Text of the law
Please note the note on the applicable legal version.

The law against unfair competition ( UWG ) is the legal basis for combating unfair competition in German law . It is part of the law of fairness .

The UWG regulates the market behavior of companies and therefore corresponds to regulations that are referred to in other legal systems as “market law” or “law of business practices” (“trade practices law”) .

The UWG protects competitors, consumers and the general public (tripartism of the protective purpose) from an unjust distortion of competition - for example through misleading advertising . The UWG is significantly influenced by European Community law . This right tries to harmonize some areas across Europe by means of binding directives . The validity of the country of origin principle in the fight against unfair competition, however, is a desideratum of German companies.

In detail, the UWG grants injunctive relief , compensation , removal , profit skimming and information claims. It has been amended frequently since it came into force in 1896 , most recently in 2015.

History of origin

Until 1894 there was no legal regulation against unfair competition, as the courts imagined that such rules would undermine the newly created freedom of trade . According to the Apollinaris decision of the Imperial Court of December 21, 1880, an act should not be prohibited by other norms, provided that it was permitted under the law on trademark protection of November 30, 1874 ( RGBl. P. 143).

The first legal rule was created in 1894 with §§ 15, 16 of the law for the protection of product names . Since this soon only offered inadequate protection, the law to combat unfair competition with individual regulations on unfairness was passed in 1896 . On October 1, 1909, the new version of June 7, 1909 (RGBl. P. 499) came into force under the title that is still current today. The first general clause was also included in it, whereby the legislature intended that the law should only serve to protect competitors, but not to protect consumers.

Law against Unfair Competition

The UWG in its version valid until July 7, 2004 presupposed a violation of good morals (§ 1 UWG - general clause). In the absence of a legal definition of the term “good (business) morals”, case law and literature have worked out case groups such as customer catching , disability, exploitation , breaking the law and disturbing the market . Despite this differentiation of case litigation remained problematic because a large number of judgments as individual decisions of the Anglo-American case law (case law) recalled.

With the new version that came into force on July 8, 2004, the UWG was fundamentally reformed for the first time. The reform took place against the background of European law requirements and in an effort to progressively harmonize legal relationships in Europe. It led to a considerable liberalization of competition law after the case law had already broken with old traditions, in particular through a more modern consumer model. Originally, the German case law for the application of the UWG was based on a “fleeting” uncritical consumer, so that the threshold to the misleading character of a commercial act was reached relatively quickly. This restricted the companies' freedom of action to a relatively large extent, which had led to strong criticism in the literature. Since the end of the 1990s, case law has been based on the image of the “average, well-informed, attentive and discreet average consumer ”, which has been shaped by the ECJ, so that since then particularly inattentive or gullible consumers are no longer used to determine the scope of protection of the UWG.

In the UWG 2004, the previous general clauses in § 1 UWG (violation of good morals) and § 3 UWG (prohibition of misleading advertising ) have been replaced by a new general clause in § 3 UWG (2004), which is replaced by example facts in §§ 4–7 UWG was specified. At the same time, the controversial regulations on anniversary and special sales (including summer and winter sales ) and on clearance sales have ceased to exist after the legislature had already shortly before the strict regulations on discounts ( DiscountG ) and free gifts (ZusatzVO) from the 1930s had deleted.

The First Act amending the Act against Unfair Competition contained extensive changes to the UWG . The law retained the same structure as the 2004 UWG, but was again significantly modified due to the requirements of European law. This applies in particular to Section 3 UWG (including the annex to Section 3 (3) UWG (“black list”) and Section 5 UWG). On December 10, 2015, the Second Act to Amend the Act Against Unfair Competition came into force. The basic structure of a uniform regulation for the B2B and B2C areas was retained. Nonetheless, there are different provisions for the B2C area in § 3 Paragraph 2–4 UWG, while § 4 No. 1–2 and 4 UWG new version contains special regulations for the B2B area. The "professional diligence" in § 2 No. 7 UWG became "entrepreneurial diligence".

Influence of European secondary law

National competition law is increasingly influenced by directives of the European Union, which must be implemented by the member states of the EU in their respective national law. This leads to an approximation of unfair competition law in the Community.

In particular, Directive 2005/29 / EC of the European Parliament and of the Council of 11 May 2005 on unfair business practices in internal market transactions between companies and consumers (UGP Directive) and Directive 2006/114 / EC of the European Parliament and of the Council of December 12, 2006 on misleading and comparative advertising (Advertising Directive) shaped the development of the UWG, previously Directive 2002/58 / EC ( Data Protection Directive ), Directive 2000/31 / EC ( E-Commerce Directive ) and Directive 97/7 / EC ( Distance Selling Directive ).

Directive 2005/29 / EC, through which the 1st UWGÄndG on December 30, 2008, brought about full harmonization of fair trading law in the relationship between companies and consumers ( B2C ) is of the greatest importance .

Full harmonization means that no milder or stricter rules are permitted (not even to achieve a higher level of consumer protection). The problem is therefore § 4 No. 6 UWG, according to which it is unfair who makes the participation of consumers in a competition dependent on the purchase of a product (without the wording of whether the consumer is significantly influenced by this). Because according to the European regulation, only such actions are unfair that contradict the professional duty of care and can significantly influence the economic behavior of the consumer. The German case law resolves the contradiction in that a violation of § 4 No. 6 UWG is only assumed if, in addition to the mere combination of participation and acquisition, there is a violation of the requirements of professional diligence (which ultimately corresponds to the European standard) .

Directive 2006/114 / EC has led to a uniform level of regulation in the European Union in the field of comparative advertising. In addition, there are an almost unmanageable number of other European requirements, from the Human Medicines Directive to the Television Directive and the Telecommunications Directive , which - at least in some aspects - govern the law of unfair competition and must be taken into account in individual cases when interpreting the competition law provisions.

Legal position since December 30, 2008

General provisions

The law now begins in § 1 UWG with the definition of the legal protection purpose . According to this, competitors, consumers and other market participants are to be protected from unfair commercial actions and the general interest in undistorted competition is taken into account.

This is followed by a catalog of definitions in § 2 UWG. Previously, under item 1, the competitive act was defined as "any act with the aim of promoting your own or third-party sales or purchase of goods or services". Instead, the 1st UWGÄndG now defines the "business act". Such is understood to mean the behavior of each person in favor of one's own or another entrepreneur before, during or after a business transaction that involves promoting the sale or purchase of goods or services or with the conclusion or implementation of a contract for goods or Services objectively related; Land also counts as goods, and rights and obligations as services.

The 1st UWGÄndG also added the definitions for the terms “code of conduct” and “entrepreneur” to the definitions of “business activity” (formerly: “competitive action”), “market participant”, “competitor”, “message” under numbers 5–7. and "professional diligence" added.

In § 3 UWG there is then the new general clause , which is no longer based on good morals in competition, but prohibits any unfair commercial act as far as it is likely to "noticeably impair" the interests of those named. However, the feature of "noticeability" only needs to be checked separately in Section 4 No. 3, 4, 5 and 11, as otherwise it is already inherent in the offense.

New by the 1st UWGÄndG, a clause has also been inserted here with paragraph 2 that declares business actions by entrepreneurs towards consumers to be unfair if these do not correspond to the professional care applicable to the entrepreneur and are suitable, the ability of the consumer to reason of information, noticeably impairing it and causing him to make a decision that he would not otherwise have made.

It is also expressly made clear here that the focus here is on the average consumer or, if the action is aimed at a specific group, on the point of view of an average member of this group.

Paragraph 3 was also added, which always declares the business activities listed in the appendix to the law to be inadmissible, such as the use of quality marks , quality marks or the like without the required approval (example: inadmissible CE marking ) or the untrue indication of certain goods or services are generally or under certain conditions only available for a very limited period of time in order to induce the consumer to make an immediate business decision without the consumer having time or opportunity to make a decision based on information . This so-called "black list" was also added with the 1st UWGÄndG and contains a total of 30 individual facts of unfair business conduct. What is special about these facts is that they describe behaviors that are definitely unfair, while all other behaviors that are not covered by these facts are only unfair if they are also suitable in accordance with Section 3 (1) UWG, to noticeably impair competition (so-called small claims clause).

The following regulations regulate which competitive acts are still unfair. It should be noted that since the UWG amendment of 2008, Section 7 UWG is no longer a mere specification of the unfairness of Section 3 (1) UWG, but an independent fact (see Section 8 (1) UWG). Regulate in detail:

Legal consequences

In § 8 UWG the regulations on the injunction, in § 9 UWG on the claim for damages and in § 10 UWG on profit skimming for the benefit of the general public follow. This is followed by regulations on statute of limitations and procedures.

The group of those persons or organizations who can assert legal claims in the event of an inadmissible commercial act by a company is defined very broadly in § 8 UWG.

A claim for injunctive relief and removal can be asserted according to § 8 Abs. 3 UWG by

There are, however, voices in the legal literature that plead for a restriction of entitlement to claim. So z. B. If a competitor is denigrated, only the person concerned can assert the claims, but not other competitors or associations. Compensation can only be claimed by competitors if the UWG has been violated intentionally or negligently. However, it is rarely possible to prove damage that can be traced back to the violation. Because it is difficult to prove how the business development would have happened without the violation. The individual affected consumer has no claims under the UWG. This is justified by the fact that he is adequately protected through his rights under the German Civil Code (challenge, warranty, etc.). Consumers can, however, suggest to the interest groups entitled to claim that they take action against the UWG violations (such as the headquarters for combating unfair competition).

Claims for damages can only be made by competitors who have suffered damage. The consumers affected by inadmissible business activities have no legal claims. However, they can assert their interests indirectly through consumer associations or other eligible organizations, such as the Central Office for Combating Unfair Competition .

Legal process

Unlike antitrust law, the UWG is not enforced ex officio by the authorities, but is enforced by market participants in court, for example through actions for an injunction . An instrument that is unusual from the point of view of civil law is submission to third parties with legal effect vis-à-vis third parties, not just between the parties to the proceedings.

According to § 13 I S. 1 UWG, the regional courts have exclusive jurisdiction in the first instance (similar provisions are § 140 MarkenG, § 52 Abs. 1 DesignG , § 27 Abs. 1 GebrMG , § 143 Abs. 1 PatG and § 6 Abs. 1 UKlaG ) . As the reference to Section 95 (1) No. 5 GVG shows, the functional responsibility lies with the chambers for commercial matters , whereby the plaintiff must apply for this in accordance with Sections 96, 98, 101 GVG. Section 13 (2) UWG also empowers the state governments to summarize the competences by means of statutory ordinances in order to be able to better use the expertise of the courts. Little use has been made of this authorization to date.

The judgment of the regional court can be attacked both with an appeal according to § 511 Abs. 2 Nr. 1 ZPO , § 119 I Nr. 1 GVG to the Higher Regional Court and with the leap revision § 566 ZPO, § 133 GVG to the Federal Court of Justice , provided the value of the object of the complaint Exceeds 600 euros.

The judgment of the OLG as the court of appeal can be challenged with the appeal according to § 542 ZPO, § 133 GVG to the Federal Court of Justice, as far as the appeal court allows the appeal. Otherwise, the unsuccessful party can submit a non-admission complaint to the BGH if the amount by which the unsuccessful party is adversely affected by the appeal judgment exceeds the value of 20,000 euros.

At the Federal Court of Justice, the 1st Civil Senate is functionally responsible for disputes arising from the UWG.

Conciliation body for the settlement of competition disputes

A cost-effective alternative to proceedings before the ordinary courts can be the arbitration board for the settlement of competition disputes. The arbitration boards are run by the chambers of industry and commerce. Applications and letters to the arbitration board must be addressed to the locally responsible Chamber of Commerce. Entrepreneurs who are in a direct competitive relationship with the respondent as well as associations promoting commercial interests are eligible to apply, provided they can sue in civil litigation (Section 15 (3) in conjunction with Section 8 UWG). The task of the arbitration board is to strive for an amicable settlement in competition disputes. The arbitration board is factually responsible for dealing with civil law disputes arising from competition law (Section 15 UWG). The arbitration board is a real arbitration board. Nevertheless, their invocation is rarely used in practice.

If an agreement is reached between the parties, usually in an oral hearing, it is recorded in a written settlement in a special document. In most cases, the respondent assures by concluding such a settlement that he will refrain from advertising in the future. In the event of a future violation of the settlement, a contractual penalty is usually agreed. From a settlement reached before the arbitration board, the foreclosure can be carried out as from a judgment - with the corresponding application of the civil procedure code (Section 15 (7) UWG). If no agreement is reached, the conciliation board determines that the procedure has failed. The parties are free to seek legal assistance afterwards.

Criminal provisions

In §§ 16 UWG the law contains a criminal offense ( subsidiary criminal law ) against misleading advertising ( § 16 para. 1 UWG) and progressive customer systems such as certain pyramid and pyramid schemes ( § 16 para. 2 UWG).

This criminal offense partly has a different or additional protective purpose than the civil law provisions. For example, Section 16 (2) UWG (also) aims to protect the property of consumers and therefore - like fraud , Section 263 StGB - (also) belongs to the group of property crimes . Since it seems inappropriate to withhold the criminal law protection of his property by the UWG from the gullible consumer, it is discussed in the criminal law literature whether the consumer concept of the criminal law provisions of the UWG is possibly wider than that of the civil law provisions. A criminal senate of the BGH has meanwhile indicated that it considers this to be possible.

Until April 2019, the UWG included the following additional criminal offenses, which were replaced by the law on the protection of trade secrets :

Sociopolitical Aspects

Competition law is sometimes viewed as problematic from a socio-political perspective. Representatives of this view argue that the UWG can be abused for the purpose of competition. Financially strong companies could also afford injunctions that would have little chance of success in court. For a considerable financial pressure brought to bear on other companies, which could tempt to give in by unchecked criminal penalties cease and desist would comment. Economists, on the other hand, criticize the risk that the UWG could intervene in self-regulating market processes and thereby disrupt them in the long term. They point out that other legal systems such as common law (Great Britain, Australia, etc.) manage with a significantly narrower range and depth of regulation and have had positive experiences with it.

literature

  • Oliver Marc Hartwich: Competition, advertising and law: a criticism of the law of unfair competition from a historical, comparative law and economic point of view: brought together using the example of comparative advertising. Utz-Verlag, Munich 2004, ISBN 3-8316-0343-X .
  • Stefan Maaßen: Abolition of the effective legal protection through the "law against dubious business practices"? , GRUR-Prax 2012, 252
  • Axel Beater: Unfair competition. 1st edition, Mohr Siebeck, Tübingen 2011, ISBN 978-3-16-150866-0 .
  • Henning Harte-Bavendamm, Frauke Henning-Bodewig (Hrsg.): Law against unfair competition (UWG) - with price information regulation. 2nd edition, CH Beck, Munich 2009, ISBN 978-3-406-56601-1 .
  • Karl-Heinz Fezer, UWG. Commentary , (in 2 volumes), 2nd edition, Munich 2010, Verlag CH Beck, ISBN 978-3-406-57895-3
  • Helmut Köhler, Joachim Bornkamm: Competition Law - Law against Unfair Competition, Price Indication Ordinance. 29th edition, CH Beck, Munich 2011, ISBN 978-3-406-61005-9 .
  • Cornelius Matutis: UWG. Practitioner's Comment on the Unfair Competition Act. Erich Schmidt Verlag, Berlin 2005, with 978-3-406-54281-7 online offer http://UWG.ESV.info , ISBN 3-503-08373-1 .
  • Henning Piper / Ansgar Ohly / Olaf Sosnitza: UWG - law against unfair competition with price information regulation. 5th edition, CH Beck, Munich 2010, ISBN 978-3-406-59461-8 .
  • Kai Wunsch: Competition Law UWG, 3rd edition 2015, Niederle Verlag, ISBN 978-3-86724-156-4 .

Web links

Wikisource: Law to Combat Unfair Competition. May 27, 1896.  - Sources and full texts
Wikisource: Unfair Competition Act. 7 June 1909  - Sources and full texts

Individual evidence

  1. ^ Ansgar Ohly: Ohly / Sosnitza, law against unfair competition . 6th edition. CH Beck, Munich 2014, ISBN 978-3-406-64947-9 , § 1 Rn. 2 (access via beck-online ).
  2. ^ Ansgar Ohly: Ohly / Sosnitza, law against unfair competition . 6th edition. CH Beck, Munich 2014, ISBN 978-3-406-64947-9 , § 1 Rn. 1 (Literally: "It is market behavior law and corresponds to the provisions that are summarized in other legal systems under the generic terms" market law "or" law of business practices "(trade practices law)."; Access via beck-online ).
  3. ↑ Federal Association of German Industry BDI: Lauterkeitsrecht ( Memento of the original from July 8, 2015 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.  @1@ 2Template: Webachiv / IABot / www.bdi.eu
  4. ↑ RGZ 3, 67
  5. ↑ See e.g. B. BGH GRUR 2000, 619 = WRP 2000, 517 = NJW-RR 2000, 1490 - Oriental carpet samples.
  6. ↑ Well-known is the polemical formulation of Volker Emmerich : "The consumer model of the BGH is the helpless consumer who persists on the verge of debility, needs comprehensive care and has to be protected against the slightest risk of being misled by advertising," Emmerich, Restrictions on competition through case law , in: Lange / Nörr / Westermann (ed.), Festschrift für Joachim Gernhuber , Tübingen 1993, pp. 857, 870.
  7. ↑ See e.g. B. ECJ judgment of July 16, 1998, RS G-210/96, Gut Springenheide GmbH ./. Rudolf Tusky = GRURInt. 1998, 795 ff.
  8. ^ First law amending the law against unfair competition of December 22, 2008 ( Federal Law Gazette I p. 2949 , PDF)
  9. ^ Synopsis of the changes as of December 30, 2008
  10. ↑ Second law amending the law against unfair competition
  11. ^ Synopsis of the changes as of December 10, 2015
  12. ↑ Directive 2005/29 / EC on unfair commercial practices in internal market transactions between companies and consumers
  13. ↑ Directive 2006/114 / EC on misleading and comparative advertising
  14. ^ Synopsis UWG - EU guidelines Vahlen-Verlag
  15. ↑ Synopsis UWG - UGP guideline (with explanations) Competition headquarters 03/2010
  16. ↑ Köhler / Bornkamm, UWG, 30 ed. § 3 Rn. 136 ff.
  17. ↑ This counterfeit protection, known as ancillary protection, is, however, in a tense relationship with the special legal protection of commercial legal protection and copyright. Because there is a time limit for protection. After this time, the freedom of imitation enables the imitation competition. The UWG regulation is therefore criticized for the fact that it relativizes this freedom of imitation and that protection is possible beyond the special legal term.
  18. ^ Kai Wünsche, Legal Consequences of Competition Violations - Prevention and Compensation, Nomos, ISBN 978-3-8487-0360-9 , p. 50 ff.
  19. ^ Material competence of the civil senates of the Federal Court of Justice . Retrieved December 1, 2015
  20. ↑ Robert Kilian: On the criminal liability of Ponzi schemes - The Madoff case according to German competition and capital market criminal law HRRS online magazine for highest court case law on criminal law, 2009
  21. ↑ For this Brammsen / Apel, WRP 2011, 400, 404; Vergho, The standard of consumer expectation in consumer protection criminal law , Freiburg 2009, pp. 53 ff., 122 ff., 158 ff. And wistra 2010, 86 ff .; for the validity of the general consumer term also in the criminal law part of the UWG z. B. Claus, JURA 2009, 439, 440; Rengier , in: Fezer (Hrsg.), UWG, Vol. 2, 2nd edition 2010, § 16 Rn. 77.
  22. ↑ BGH, decision of February 24, 2011, Az. 5 StR 514/09, NJW 2011, 1236 ff., Rz. 29; critical of this Mäsch, GRURPrax 2011, 200, consenting Brammsen / Apel, EWiR 2011, 439 f
  23. ↑ See the legal proceedings against DeinBus.de