Under certain circumstances, an infringement of competition law may also result in a claim for damages. However, this requires proof by the claimant that the damage was also caused by an act of the defendant that is relevant under unfair competition law.

What Damages are Compensated?

Positive Damage

Such damages are compensated which constitute an impairment or destruction of an asset or arise from the fact that the injured party has to make expenses that are related to the damage.

Lost Profit

Lost profits can also be compensated with the help of the claim for damages. This is measured according to the profit that the claimant would have made in the ordinary course of events.

The loss of an earning opportunity can already be included in the damage to be compensated.

Suffered Insult and other Personal Disadvantages

Intangible damages – these are damages that are not caused by the impairment of an asset, but by the violation of an individual legal right such as the right to personality, physical integrity, honor, reputation, etc. – must also be compensated if special circumstances exist.

In short, this is the case when there are serious impairments or the social standing of the claimant is particularly severely impaired. Simple annoyance about the behavior of a competitor is therefore not sufficient.

Further Requirements

Causality and Adequacy

The competitor’s violation of competition law, which the claimant complains about, must have been causal – the cause – for the damage suffered by him.

The burden of proof for this lies with the claimant.

In addition, it must not be outside of all experience that such a violation has led to this very damage. The damaging act must therefore not only have been a condition for the damage due to an extraordinary chain of circumstances. (Adequacy)

Illegality

A further prerequisite for the damage to be compensated is that the conduct of the defendant was actually illegal.

A behavior is simply illegal if it violates the facts established by law in competition law.

Fault

In contrast to the claim for injunctive relief and removal, a claim for damages requires fault on the part of the defendant.

In principle, fault is given in the case of negligent or intentional action.

In the context of the claim for damages under competition law, slight negligence with regard to the damaging conduct is generally sufficient. Only in individual, legally regulated cases is an intentional act of infringement required.

If the damaging party is informed of the illegality of his action by a warning and does not refrain from it despite this, this can establish fault.

Active Legitimation – who is Entitled to Sue?

Who can assert a claim for damages is not expressly regulated by law with regard to the claim for damages under competition law.

Competitors are primarily entitled to compensation.
Consumers?

The legal situation in the event of a direct impact on the consumer is still controversial.

Consumers are generally not granted an individual claim by law. However, since competition law – although it essentially serves to protect competitors among themselves – should also protect consumers, the case law has exceptionally granted them their own claim for damages in individual cases as a result of a direct impact on consumers.

In Germany, the law is now to be reformed accordingly.

Passive Legitimation – who is Liable for Compensation?

The direct perpetrator who culpably caused the damage
The person who enabled or promoted the violation – i.e. accomplices, instigators and accessories
Company owners are responsible for the actions of the people in their company