Section 13 UWG – Civil-law claims in cases under Section 10 UWG

Section 13 UWG governs the civil-law consequences of prohibited bribery in competition. The provision is linked to Section 10 UWG and, put simply, means: Anyone who seeks to gain an unfair competitive advantage by bribing employees or agents must not only expect criminal consequences, but may also be held civilly liable. The law primarily grants the affected party two key claims: injunctive relief, i.e. the immediate cessation of the unlawful conduct, and damages if the act has caused an economic loss. In practice, it is often problematic to determine who has actually suffered harm, what damage can be proven, and whether all requirements for prohibited bribery are in fact met.

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Connection with bribery under Section 10 UWG

The civil-law claims are directly based on unfair bribery in competition. This refers to conduct where someone attempts to influence decisions relating to the procurement of goods or services through unlawful advantages. This involves a company offering or granting advantages to an employee or agent of another company so that the latter makes a preferential decision.

For understanding this, it is crucial: The civil-law consequences do not arise in isolation, but are linked to this misconduct. Without such unfair influence, there is no claim for injunctive relief or damages in this area.

Civil-law claims

The civil-law claims protect affected parties from the consequences of unfair bribery in competition. Anyone disadvantaged by such conduct does not have to rely solely on criminal law. The law additionally opens up civil-law options to take action against the violation and compensate for economic disadvantages.

These claims are:

• Injunctive relief to prevent further breaches
• Damages to compensate specific economic losses

In this way, civil-law claims create an effective framework to ensure that unfair competitive advantages do not go without consequences.

Commission of bribery under Section 10 UWG

The civil-law assessment is linked to bribery under Section 10 UWG. This refers to conduct where business decisions are no longer made solely on the basis of performance, price, or quality, but are influenced by unlawful advantages.

At its core, it concerns offering, granting, or accepting an advantage. This advantage is intended to induce an employee or agent to make a preferential decision. This is precisely where the unfair interference in competition lies.

For laypersons, one point is particularly important: This is not about mere politeness or customary courtesies, but about an advantage that is granted or accepted precisely so that a decision in competition is no longer made objectively.

Claim for damages under Section 13 UWG in conjunction with Section 16 (2) UWG

For a civil-law claim to actually arise from a breach of competition law, several requirements must be met. It is not sufficient for conduct to merely appear suspicious or unpleasant. The law requires a clear legal assessment.

First, the elements of bribery under Section 10 UWG must be met. Additionally, the general requirements that civil law demands for liability are necessary.

For damages under general civil law pursuant to Section 1295 ABGB, the following requirements must be met:

• Occurrence of damage
• Causality & adequate connection between conduct and debt
• Unlawfulness and scope of protection of the conduct
• Fault on the part of the acting person

Only the interplay of these points provides a sound basis for claims for injunctive relief and damages.

Requirements for civil liability pursuant to Section 1295 ABGB

The claim for damages is aimed at financial compensation for a loss suffered. Anyone harmed by unfair influence in competition may demand compensation for the economic loss incurred.

The claim for damages under Section 13 in conjunction with Section 16 UWG requires, in addition to the commission of the offense under Section 10 UWG, the general requirements for civil liability. Therefore, the existence of damage, a causal and adequate connection between the unlawful conduct and the disadvantage suffered, the unlawfulness of the act, and fault on the part of the damaging party are required.

The claim is not intended to punish, but to compensate. Affected parties are to be placed in the economic position they would have been in had the breach not occurred.

Damage

For a claim for damages to exist, the affected party must have suffered a disadvantage as a result of the unlawful act. The damage thus forms the basis of every claim for damages. Without an actually occurred economic disadvantage, no damages can be claimed. The question of which specific damages can be compensated and how their amount is to be determined is handled separately.

Causality and adequate connection

There must be a causal link between the unlawful act and the damage suffered. The damage must therefore have arisen precisely because of the anti-competitive conduct. The injured party must prove that the disadvantage suffered would not have occurred, or at least not in the same way, without the act of bribery.

Furthermore, the damage must also have been adequately caused. Only those damages that can be regarded as a typical consequence of the unlawful conduct in the ordinary course of things are compensable. On the other hand, damages that have only arisen due to extraordinary or completely atypical circumstances are not compensated.

Atypical damages are those that only arise through an unusual chain of circumstances and, according to general life experience, were not to be expected as a consequence of the act of bribery. Such damages do not fall within the scope of attribution of the damaging party.

Unlawfulness and scope of protection

Unlawfulness results from the commission of the offense under Section 10 UWG. Anyone who influences business decisions through the inadmissible granting or acceptance of advantages violates the statutory requirements of unfair competition law and therefore acts unlawfully.

Additionally, there must be a connection to the scope of protection (Rechtswidrigkeitszusammenhang). This means that the damage suffered must be of the type of disadvantage that the violated norm is intended to protect against. Section 10 UWG serves the protection of fair and undistorted competition. Therefore, compensable damages are, in particular, those attributable to anti-competitive preference or disadvantage.

Fault

A claim for damages also requires fault on the part of the damaging party. Fault exists if someone acts unlawfully and this conduct is personally blameworthy. A distinction is made between intent and negligence.

Since Section 10 UWG requires intentional conduct, violations of this provision must involve at least conditional intent. Conditional intent (dolus eventualis) exists if the perpetrator seriously considers the occurrence of a certain result to be possible and accepts its realization. The result is not necessarily sought, but is consciously accepted.

However, it is disputed whether conditional intent is actually sufficient for Section 10 UWG. Due to the wording of Section 10 UWG (“in order to…” or “so that…”), it is argued that targeted influence on competition is required beyond mere conditional intent. Therefore, it is sometimes argued that purposeful action is required and mere conditional intent is not enough.

In practice, violations of Section 10 UWG are regularly assumed to be intentional acts. Whether intent actually exists, however, must always be assessed based on the circumstances of the individual case.

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Calculation and scope of the damage

The amount of damages is based on the actual economic disadvantage suffered by the injured party. The aim of damages is to restore the state that would exist without the damaging event.

Determining the amount of damage is difficult in the case of competition violations. In particular, it often cannot be determined with certainty how the financial situation of the injured party would have developed without the unfair act. In such cases, the court may estimate the amount of damage, taking into account the circumstances of the individual case.

The claim for damages may extend to the following items of damage:

• actual loss, i.e., an immediate reduction in assets,
• lost profit, if the injured party has lost a contract, business deal, or other economic advantage due to the competition violation,
• frustrated expenses, which are costs and investments made in reliance on a proper course of competition but which prove to be useless as a result of the competition violation.

The scope of the claim for damages is always based on the specific circumstances of the individual case.

Claim for injunctive relief under Section 14 UWG

The claim for injunctive relief represents one of the central instruments of unfair competition law. Its purpose is to prevent unlawful competitive acts and ensure fair competition. Unlike the claim for damages, the claim for injunctive relief does not require damage to have already occurred, but is aimed at the prevention of future legal violations.

The claim for injunctive relief results in the immediate cessation of the unlawful act. This is intended to prevent further competition violations and end the impairment of fair competition as quickly as possible. At the same time, the claim serves the protection of competitors from future economic disadvantages that could result from a continuation of the unlawful conduct.

Requirements and scope of the claim

The prerequisite for asserting a claim for injunctive relief is first the existence of unlawful conduct. Furthermore, there must be a risk of recurrence. This exists if, based on objective circumstances, it is to be feared that the competition violation will be committed again. According to established case law, even a single violation establishes the presumption of a risk of recurrence.

The scope of the claim for injunctive relief is based on the specific competition violation. The court injunction must, on the one hand, be sufficiently specific, but on the other hand, also prevent circumvention.

The following requirements must be met for a claim for injunctive relief:

• Unlawful conduct, specifically the commission of an offense under Section 10 UWG
• Existence of a risk of recurrence
• Standing to sue of the claimant

Claim for removal under Section 15 UWG

The claim for removal under Section 15 UWG supplements the claim for injunctive relief and serves to restore a lawful state. While the claim for injunctive relief aims to prevent future competition violations, the claim for removal is directed against the continuing consequences of a legal violation already committed.

A prerequisite for the claim for removal is that the unlawful act continues to have an effect and thus a persisting impairment exists.

The claim does not require a risk of recurrence. Rather, it is decisive that the consequences of the competition violation still exist and can be removed by suitable measures. This is intended to prevent the infringer from permanently profiting from an unlawfully obtained competitive advantage.

Supplementary civil-law claims under the ABGB

In addition to the specific claims under competition law, general civil-law claims under the ABGB – the Austrian General Civil Code – may also apply. These are particularly important where specific provisions are insufficient or gaps exist.

The Austrian General Civil Code provides several starting points for claims for damages.

The following legal bases for claims may be considered:

• Damages under general civil law pursuant to Section 1295 (1) ABGB
• Intentional damage contrary to public policy pursuant to Section 1295 (2) ABGB
• Liability for breach of protective laws pursuant to Section 1311 ABGB

These regulations allow for a flexible legal assessment. However, general civil-law claims do not take the place of unfair competition law claims, but supplement them. They serve to close any gaps in protection and ensure comprehensive legal protection for injured market participants.

Section 1295 (1) ABGB

In addition to the unfair competition law claims of the UWG, liability can also be based on the general damages provision of the ABGB. According to this, anyone who unlawfully and culpably causes damage to another is obliged to compensate for it.

Requirements for liability under Section 1295 (1) ABGB are the existence of damage, unlawful conduct, causality between act and damage, and fault on the part of the damaging party. In connection with acts of bribery under Section 10 UWG, it is argued that unlawfulness is to be assessed within the framework of a balancing of interests. As a result, liability may also be considered if the requirements of Section 13 UWG are not fully met.

In the following situations, Section 1295 ABGB may apply:

• if the requirements of Section 10 UWG are not fully met,
• if the intent to provide a competitive preference cannot be proven,
• if there is no claim under Section 13 UWG, but there is nevertheless unlawful and culpable damage.

Section 1295 (2) ABGB

Section 1295 (2) ABGB establishes liability for intentional damage contrary to public policy. The provision applies if someone deliberately causes damage to another in a manner that violates public policy (bonos mores).

In contrast to Section 1295 (1) ABGB, mere negligence is not sufficient here. Rather, at least conditional intent regarding the damage to the affected party is required. In the field of competition law, liability under Section 1295 (2) ABGB can be particularly relevant if bribery acts are used to specifically interfere with the protected competitive sphere of a competitor.

Breach of protective laws under Section 1311 ABGB

A further legal basis for a claim may arise from Section 1311 ABGB. According to this provision, the breach of a protective law can establish an obligation to pay damages. Protective laws are legal norms that not only pursue public interests, but also aim at the protection of certain persons or groups of persons.

If Section 10 UWG is violated and a competitor or other protected third party suffers damage as a result, this can establish an obligation to pay damages under Section 1311 ABGB.

In the event of a breach of a protective law, according to the prevailing view, even negligent conduct can be sufficient for liability. Protective law liability therefore represents an important supplement to the special unfair competition law claims of the UWG and contributes to comprehensive civil-law protection against competition violations.

Interim legal protection in practice

Interim legal protection is of particular importance in unfair competition law. Competition violations can develop significant economic effects within a short period of time, which is why the decision in the main proceedings often cannot be awaited. To ensure effective legal protection, there is therefore the possibility of securing claims for injunctive relief through an interim injunction even before the conclusion of the main proceedings.

Through the interim injunction, the opposing party can be prohibited from continuing the contested act even before a final court decision. Interim legal protection thus represents an essential instrument for ensuring an effective system of competition and legal protection.

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Supplementary claims under the UWG

In addition to claims for injunctive relief and damages, the UWG provides for further claims that serve the effective enforcement of unfair competition law claims.

These pursue the goal of eliminating information deficits, facilitating the clarification of the facts, and supporting the enforcement of existing claims. Especially in the case of complex competition violations, injured parties often do not have the necessary information to assess the scope of the violation or the damage incurred.

The supplementary claims therefore contribute significantly to ensuring effective legal protection.

Accounting and right to information

The claim for accounting and information serves the disclosure of information required for the enforcement of further claims. Such a claim may exist in preparation for a claim for damages.

The aim of the claim is to make the information necessary for the assessment and quantification of their claims accessible to the injured party. This concerns, in particular, data on sales, business relationships, or other circumstances related to the competition violation. Without corresponding options for information, the assertion of claims for damages would in many cases be significantly more difficult or even impossible.

The claim for accounting and information therefore represents an important instrument for eliminating information asymmetries between the parties and strengthens legal enforcement in unfair competition law.

Publication of the judgment as an ancillary claim

The publication of the judgment under Section 25 UWG represents a supplementary claim that serves to inform the public and eliminate the adverse effects of a competition violation. It is intended, in particular, to correct those misconceptions that have arisen through the unlawful conduct.

Through the publication of the court decision, market participants, customers, and business partners can be informed about the competition violation. This not only increases transparency in the market but also strengthens trust in fair competition.

In this way, publication of the judgment fulfils an important clarifying function and strengthens transparency in the market.

Entitled claimants and standing to sue

Not every economically affected person can automatically assert claims from a competition violation. The decisive factor is whether a person falls within the scope of protection of the respective legal basis for the claim.

The standing to sue thus determines who is entitled to enforce claims for injunctive relief, removal, or damages in court. If standing to sue is lacking, the lawsuit must be dismissed regardless of the substantive legal situation.

The focus is on the specific connection to competition. The law primarily protects those market participants whose competitive opportunities are directly impaired. Therefore, mere economic impact is not sufficient. Rather, the impairment must specifically concern those interests that are intended to be protected by the respective norm.

At the same time, a clear distinction between the various legal bases for claims is required. While Section 13 UWG covers only a specific group of affected parties, broader claims may arise under general civil law. Standing to sue therefore always depends on the legal basis on which the claim is founded.

Competitors as the key claimants

Competitors fall within the core group of entitled claimants. They are in direct competition and are directly disadvantaged by unfair bribery. When decisions in competition are no longer made on objective criteria, they lose orders, market share, or business opportunities.

For this reason, competitors fall within the scope of protection of Section 13 UWG. Their impact is clear and comprehensible because the distortion of competition directly affects their economic position.

Other potentially harmed persons

Other persons may be economically affected, but are not automatically entitled to claim under Section 13 UWG. The scope of protection of this provision is narrower and primarily covers competition itself and its participants. The decisive factor remains whether the person concerned is covered by the scope of protection of the norm.

Particular importance is attached to the principal of the beneficiary or the person bribed. Although the principal may suffer economic disadvantages as a result of the conduct of their employee, the prevailing view is that they do not automatically fall within the scope of protection of Section 13 UWG. Their standing to sue must therefore be examined separately.

In practice, the following may be considered in particular:

• Claims for damages under the ABGB where unlawful conduct exists
• Claims from contractual or pre-contractual obligations

Whether an entitlement to claim exists must always be assessed based on the specific circumstances of the individual case and the respective legal basis for the claim used.

Your Benefits with Legal Assistance

Enforcing claims in competition law requires precise legal action and strategic thinking. Particularly in cases related to bribery in competition, complex questions of evidence and legal uncertainties quickly arise. Anyone who proceeds here without sound legal guidance risks not fully enforcing justified claims or taking unnecessary risks.

An experienced attorney ensures that your claims are pursued in a targeted and efficient manner. They examine the prospects of success, secure evidence, and develop a clear strategy for injunctive relief and damages. At the same time, they help to avoid typical mistakes and choose the right legal basis for the claim.

Your specific advantages:

• Clear legal classification of your case and a realistic assessment of the prospects of success
• Effective enforcement of claims for injunctive relief and damages
• Strategic advice for the swift and sustainable cessation of unfair competitive practices

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