Claim for Injunctive Relief

The claim for injunctive relief is the most important claim in practice for taking action against unfair practices – why?

• It serves the need for a quick solution
• It has a burden of proof regulation that is favorable for the claimant
• It is independent of fault

When Does a Claim for Injunctive Relief under Competition Law Exist?

The claim for injunctive relief under competition law basically has two requirements:

• Obligation to refrain of the defendant
• Risk of contravention against this obligation

Both elements must be present for a claim for injunctive relief to be established.

What does that mean in detail?

Obligation to Refrain

An obligation to refrain can arise as a result of an endangerment or violation of absolute rights, from legal relationships or special rules of conduct, such as the regulations under competition law of the UWG (Law Against Unfair Competition).

Thus, if an entrepreneur violates a provision of competition law – for example, by unfairly hindering a competitor or using misleading business practices – or if such a violation is to be feared, he is obliged to refrain from this behavior.

Risk of Contravention

The claim for injunctive relief requires the risk of an imminent future interference with the legal rights of another.

Depending on whether a violation of competition law has already occurred, a distinction is made in this context between …

• … a preventive claim for injunctive relief

If competition law has not yet been violated, a preventive claim for injunctive relief may nevertheless exist, provided that there is sufficient evidence of a risk of initial infringement.

It must be feared that an interference with the legal rights of the objecting entrepreneur by the potential defendant will occur in the near future.

Since the entrepreneur is not defending himself against an interference that has already occurred, but wants to prevent it from happening in the first place, there must be concrete indications for the emergence of a preventive claim that a violation of the law is also imminent.

The behavior of the potential defendant is decisive here.

Indications of a risk of initial infringement can be, for example, preparatory actions, advertising announcements or assertions of being the owner of a right.

The mere registration of a trademark is not sufficient for this, as it alone does not make any statement about the ultimate action of the owner that is relevant under competition law.

Peter Harlander
Harlander & Partner Rechtsanwälte „Vor Gericht muss der Unterlassungskläger das Vorliegen einer Erstbegehungsgefahr beweisen!“

• … and a genuine claim for injunctive relief

If a violation of competition law has already occurred, this is referred to as a genuine claim for injunctive relief, which requires the existence of a risk of repetition.

There must therefore be a concern that the competitor will repeatedly interfere with the claimant’s rights protected under competition law.

The respective circumstances of the individual case are decisive for the assumption of a risk of repetition. For the assumption of a serious concern, there must be indications of future disturbances.

The nature of the previous interference and the intention of the person acting in violation of competition law, which is demonstrated by his behavior in its entirety, are important indications for the assessment.

In particular, his actions after the complaint of the interference and during any ongoing court proceedings in connection with this interference can provide information as to whether a future violation of the law is to be feared.

The offer of a settlement agreement or compensation for damages prior to the hearing may, for example, indicate that a risk of repetition has ceased to exist or is absent.

A vehement defense of the interference that has already occurred in the hearing by the defendant, on the other hand, is an indication that further disturbances under competition law could occur on his part.

Peter Harlander
Harlander & Partner Rechtsanwälte „Im Gegensatz zur Rechtslage bei der vorbeugenden Unterlassungsklage, wird das Bestehen einer Wiederholungsgefahr durch die bereits eingetretene Zuwiderhandlung vermutet.“

This means that the plaintiff does not have to prove its existence in court, but it is assumed that a risk of repetition exists until the defendant proves that such a risk does not (anymore) exist.

The risk of repetition can also cease to exist later – for example, due to a change in circumstances or because the defendant now agrees to an injunction. This can have an impact on the allocation of costs between the parties.

If the risk of repetition ceases to exist only during the hearing, the defendant must bear the costs of the proceedings due to the principle of presumption of a risk of repetition, unless he can prove that a risk of repetition did not exist even before the start of the hearing.

If the risk of renewed contravention ceases to exist even before the action is brought, the requirements for a claim for injunctive relief are not met from the outset and the plaintiff must bear the costs.

Indications of the cessation before the trial are, for example, compensation for damages, the offer of a settlement or the elimination of the complained condition.

Of course, the violation of competition law by the competitor can also be based on a mistake. If he eliminates the damaging circumstances, the risk of contravention and thus the prerequisite for a claim for injunctive relief ceases to exist.

A prior warning to the infringer is generally not necessary, but it can in turn be an important indication of the existence of a risk of repetition if he continues the damaging behavior despite the warning.

Time of Occurrence

The risk of contravention (risk of initial infringement or risk of repetition) must exist at the latest at the time of the conclusion of the hearing of the court of first instance.

Standing to Sue – who is Entitled to Sue?

As a result of the violation of competition law, anyone who is directly and specifically affected by it initially has a claim for injunctive relief.

In addition, the following persons may also assert the claim for injunctive relief under competition law in certain cases:

• Competitors who are not directly affected
  Certain violations can potentially have a detrimental impact on all competitors of the infringer.
  In such cases, competitors who have not been directly affected by the violation may also assert the claim for injunctive relief, even if there is only a purely abstract risk that their rights protected under competition law could be violated.
  A competitor is any entrepreneur who manufactures or places on the market goods or services of the same or related kind.
  The entrepreneurial capacity required here is to be understood in a broader sense. Anyone who pursues an independently operated activity that is aimed at profit or at least serves economic purposes is entitled to assert a claim.

• Associations
  In addition, associations for the promotion of economic interests of companies (for example, the bar association) may bring an action.
  Furthermore, the Federal Chamber of Workers and Employees, the Austrian Economic Chambers, the Presidents’ Conference of the Austrian Chambers of Agriculture, the Austrian Trade Union Federation and the Federal Competition Authority are entitled to enforce the law.

• Consumers
  A right of action for individual consumers is generally not provided for.
  The legal situation in the event of a direct impact on the consumer is still controversial.
  The Association for Consumer Information (VKI) has limited standing to sue if consumer protection issues are affected.

Liability to be Sued – Direct Perpetrator / Indirect Perpetrator

Defendants can be

• Primarily the direct perpetrator from whom the violation originates
• Co-perpetrators, instigators and accomplices – Also anyone who has enabled or promoted the violation
• Company owners are responsible for the persons working in their company

Statute of Limitations

The claim for injunctive relief becomes statute-barred after six months from knowledge.

Important Points

• The claim for injunctive relief is the most important in practice because it promises a quick solution, has a burden of proof regulation that is favorable for the claimant and is independent of fault
• It requires an obligation to refrain on the part of the defendant due to a violation of competition law and the risk of contravention against this obligation
• Depending on whether a violation of competition law already exists, a distinction is made between a preventive and a genuine claim for injunctive relief
• The preventive claim for injunctive relief requires a risk of initial infringement, in which there must be a concrete concern for a future violation in the near future. The plaintiff must prove this in court.
• In the case of a genuine claim for injunctive relief, there must be a risk of repetition with regard to a renewed contravention. Its existence is presumed, i.e. regarded as given, until the defendant provides proof to the contrary. This represents a major advantage for the plaintiff.
• The risk of contravention (risk of initial infringement or risk of repetition) must exist at the time of the conclusion of the hearing of the court of first instance.
• The claim can primarily be asserted by competitors and associations.
• Possible defendants are the direct, but also the indirect perpetrator as well as company owners.
• The claim for injunctive relief can be asserted six months from knowledge.