§ 16 UWG – Claim for Damages

The claim for damages under § 16 UWG grants consumers and businesses the right to demand compensation for damages caused by certain unfair business practices or other competition infringements. The purpose of this provision is to place affected parties in the financial position they would have been in without the competition infringement. Unlike the injunction claim, which aims to prevent future legal violations, the claim for damages serves to compensate for disadvantages already incurred. A prerequisite is that the competition infringement has led to specific damage and that the general civil liability requirements are met. These include, in particular, unlawfulness, damage, causality, adequacy, scope of protection, and fault. The claim is thus directly linked to the general rules on damages in §§ 1293 et seq. ABGB.

Select Your Preferred Appointment Now:Free initial consultation

Prerequisites for a Claim for Damages

A claim for damages under § 16 UWG does not automatically arise from every competition infringement. Liability rather requires that both the competition law and the general civil law prerequisites of Austrian damages law are met.

The basis for this is §§ 1293 et seq. ABGB. According to these provisions, there must be, in particular, unlawful conduct, specific damage, a causal link between the conduct and the damage, and fault on the part of the tortfeasor. Additionally, the damage incurred must belong to the type of disadvantages that the violated legal norm is intended to protect against.

Only when these prerequisites are met can a claim for damages be successfully enforced. The burden of proof for this generally lies with the party asserting the claim for damages.

Existence of a Competition Infringement

The most important prerequisite for a claim for damages is a violation of competition law. The conduct of the defendant must violate a provision of the UWG and therefore be classifiable as unfair. Which violations can trigger a claim for damages depends on whether consumers or businesses are affected.

Competition Infringements against Consumers

Consumers can, according to § 16 para. 1 UWG demand damages if a business uses one of the following unfair business practices:

• Aggressive or misleading business practices according to points 1 to 31 of the Annex to the UWG
• Other unfair business practices according to § 1 para. 1 point 2 UWG
• Violations of § 1a para. 1 to 3 UWG
• Violations of § 2 UWG
• Violations of § 2a UWG

Additionally, the unfair business practice must have actually influenced the consumer’s freedom of decision. The consumer must have made a business decision based on the action that they would not have made with accurate information or without undue influence. This includes, in particular, purchasing decisions, contract conclusions, or the use of a service.

Competition Infringements against Businesses

Businesses can, according to § 16 para. 2 UWG, demand damages if they are harmed by a violation of one of the following provisions:

• Unfair business practice according to § 1 para. 1 point 1 UWG
• Disparagement of a business § 7 UWG
• Misuse of trademarks § 9 UWG
• Bribery of employees or agents according to § 10 UWG in conjunction with § 13 UWG
• Use of unauthorized means in print advertising § 21 para. 3 UWG
• Violation of administrative law provisions, § 34 para. 3 UWG

Unlike with consumers, the law does not focus on whether a business decision was influenced. The decisive factor is that the business suffered compensable damage due to the competition infringement. Under the statutory conditions, in addition to actual damage, lost profits can also be claimed.

Incurrence of Specific Damage

A claim for damages under § 16 UWG requires that the affected party has actually incurred specific damage. A mere competition infringement alone is not sufficient. Anyone claiming damages must be able to prove that the unfair act led to an economic disadvantage.

Compensable damage exists if a business loses customers, suffers sales losses, or incurs additional costs to remedy the consequences of the competition infringement. Consumers must also demonstrate that they suffered a financial disadvantage due to the unfair business practice.

Mere assumptions or theoretical disadvantages are not sufficient. The damage must have actually occurred and be verifiably ascertainable. The more precisely the economic effects can be documented and quantified, the easier it is to enforce the claim later.

Specific damage therefore constitutes a central prerequisite for a claim for damages. Without verifiable disadvantage, there is no claim for damages, even in the case of a clear competition infringement.

Causality between Infringement and Damage

There must be a causal link between the competition infringement and the damage incurred. Lawyers refer to this as causality. The damage must have occurred precisely because of the unlawful conduct and must not be attributable to other causes.

The affected party must prove that the damage would not have occurred, or at least not in the same form, without the unfair act.

Especially with sales losses or lost customer relationships, this proof can be difficult. Therefore, documenting the economic effects and the circumstances of the competition infringement is of particular importance.

Adequacy of Causation

In addition to causality, damages law requires a so-called adequacy of causation. Not every damage that is somehow related to a competition infringement must be compensated.

Only damages that appear as a typical and foreseeable consequence of the unlawful conduct according to general life experience are compensable. The incurred disadvantage must not be based on extraordinary or atypical circumstances.

Extraordinary or atypical circumstances refer to events that normally do not have to be expected. The damage must be a direct consequence of the competition infringement and must not have arisen from an unusual chain of multiple circumstances.

This requirement is intended to prevent a tortfeasor from being liable for consequences that are beyond any reasonable expectation. Liability is limited to those damages that, from an objective perspective, appear to be a direct consequence of the competition infringement.

Unlawfulness and scope of protection

For a claim for damages, the tortfeasor’s conduct must not only have caused damage but also be unlawful. In competition law, unlawfulness arises from a violation of a provision of the UWG.

Furthermore, a so-called scope of protection must exist. This means that the damage incurred must belong to the type of disadvantages that the violated provision is intended to protect against.

The law only protects those interests that are covered by the respective prohibition. The asserted damage must therefore lie within the protective purpose of the violated norm.

Select Your Preferred Appointment Now:Free initial consultation

Fault of the Tortfeasor

A claim for damages under § 16 UWG requires that the tortfeasor is at fault.

Fault exists if the tortfeasor acted intentionally or negligently. In competition law, mere negligence is generally sufficient for a claim under § 16 UWG. Only if the law expressly requires intentional action for a specific offense must the injured party prove intent.

Negligence exists if the tortfeasor disregards the required diligence. They do not consciously intend to commit the competition infringement but could have recognized and avoided it with appropriate attention. In competition law, even slight negligence is usually sufficient for a claim for damages.

Intent exists if the tortfeasor consciously commits the competition infringement or at least knows that their conduct could be unlawful and nevertheless accepts this. The tortfeasor then acts not merely carelessly, but knowingly or at least with indifference to the possible consequences of their actions.

Whether fault exists always depends on the circumstances of the individual case.

Compensable Damages under § 16 UWG

If the prerequisites for a claim for damages are met, the injured party can demand compensation for the damages caused by the competition infringement. The purpose of damages is to place the affected party in the financial position they would have been in without the unlawful act.

Which damages can be compensated is determined by the general principles of damages law. These include positive damage and, under certain conditions, lost profits.

Whether and to what extent damage is compensated always depends on the circumstances of the individual case and the available evidence.

Positive damage

Positive damage includes all directly incurred financial disadvantages caused by the competition infringement. These include, in particular, financial losses, additional expenses, or other economic burdens that reduce the existing assets of the injured party.

Case law interprets the concept of positive damage broadly. Economic advantages are also included even if their occurrence was already largely secured. The decisive factor is that the disadvantage can be specifically determined and verifiably attributed to the competition infringement.

Consumers can only claim actual damage (positive damage) under § 16 para. 1 UWG.

Lost Profit

In addition to positive damage, businesses can also claim lost profits under § 16 para. 2 UWG. This refers to profits or economic advantages that would likely have been achieved without the competition infringement but were actually not realized.

The claim covers frustrated earning opportunities, lost business deals, or lost sales. The injured party must be able to credibly demonstrate that the profit expectation was not merely based on hope but would have been realistic given the circumstances of the individual case.

Liability for Competition Infringements

Anyone wishing to assert a claim for damages under § 16 UWG must sue the correct person or company. The party liable for damages is the one who culpably caused the competition infringement. Depending on the facts, however, other persons may also be liable for the damage incurred.

Liability of the Direct Tortfeasor

Primarily, the person who committed the competition infringement themselves is liable. This is regularly the business or the person who, through their conduct, caused the unfair business practice or other competition infringement.

A prerequisite is that the tortfeasor acted unlawfully and culpably, and that the competition infringement was causal for the damage incurred. If these prerequisites are met, the injured party can demand direct compensation for the damage incurred from the responsible party.

Liability of Companies and Organs

However, competition infringements are often committed not only by individuals but also within the framework of a company. In such cases, the company itself may be responsible for the conduct of its organs, employees, or other agents.

Liability is based on the fact that companies participate in business transactions and use their employees and decision-makers to do so. Unlawful acts committed in the context of entrepreneurial activity are therefore attributed to the company.

Under certain circumstances, personal liability of managing directors or board members may also be considered. This applies in particular if they themselves initiated the competition infringement, participated in it, or, despite knowledge of the unlawful act, failed to take appropriate measures to prevent or terminate it.

Liability of Co-perpetrators and Accomplices

Not only the direct perpetrator can be liable for a competition infringement. Liability may also apply to persons who consciously promote, support, or jointly commit the legal violation with the main perpetrator.

These include co-perpetrators, instigators, and accomplices. A prerequisite is regularly that the person concerned has made their own contribution to the competition infringement and can be accused of at least negligence. The involvement must go beyond a merely subordinate or incidental participation.

Enforcement of the Claim for Damages

A claim for damages does not exist automatically. The injured party must present the facts establishing the claim and, in case of dispute, also prove them. Especially in competition infringements, the evidence often determines whether a claim can be successfully enforced.

Burden of Proof

The injured party bears the burden of proof for all prerequisites of the claim for damages. They must prove the competition infringement, the damage incurred, the causality, and the fault of the tortfeasor.

In practice, the proof of damage and the causal link pose particular difficulties. Therefore, it is advisable to secure evidence early and to document economic disadvantages as precisely as possible.

Statute of Limitations for the Claim

Claims for damages under § 16 UWG are subject to the general statute of limitations rules of Austrian damages law. A distinction must be made between a subjective and an objective limitation period.

The subjective limitation period is three years. It begins to run as soon as the injured party has knowledge of the damage and the person of the tortfeasor, or could have obtained this knowledge with reasonable care.

Irrespective of this, an objective limitation period of 30 years applies from the damaging event. After this period, the claim can no longer be enforced in court.

After the limitation period has expired, the claim can no longer be successfully enforced in court. Early legal review is therefore important to avoid loss of rights.

Relationship to Other Claims in Competition Law

The claim for damages is only one of several instruments of competition law. Depending on the facts, other claims may also exist, pursuing different objectives. These include:

• Injunction claims to prevent future competition infringements
• Removal claims for the elimination of unlawful conditions or content
• Judgment publication claims for informing the public about an established competition infringement
• Information claims for clarifying the facts and preparing further claims
• Profit disgorgement claims in legally provided exceptional cases

Which claims exist in an individual case depends on the type of competition infringement and the consequences caused thereby.

Interaction with Other Claims for Damages in the ABGB

§ 16 UWG constitutes a special legal basis for damages arising from competition infringements. In addition, general claims for damages under the ABGB may also be considered, depending on the individual case.

Which legal basis is applicable in a specific case depends on the circumstances of the individual case. Frequently, competition law and general civil law claims overlap, so several legal bases must be examined simultaneously.

The precise legal classification can have significant effects on the enforcement of the claim and the amount of compensable damage.

Your Benefits with Legal Assistance

In practice, competition law claims for damages often fail not due to the infringement itself, but due to the question of whether the damage incurred can be legally proven. The prerequisites of § 16 UWG and the general rules on damages in the ABGB are particularly complex. Even small errors in presenting evidence or calculating damages can lead to legitimate claims not being enforced.

Legal review helps to realistically assess the chances of success, secure appropriate evidence, and choose the correct legal basis. At the same time, it can be examined whether, in addition to a claim for damages, other rights exist, such as injunction, removal, or information claims.

Your benefits at a glance:

• Legally sound review of the claim prerequisites, including unlawfulness, causality, damage, and fault.
• Professional evidence securing and damage calculation to enforce claims as effectively as possible.
• Strategic enforcement of your rights against competitors, business partners, or other tortfeasors.

Select Your Preferred Appointment Now:Free initial consultation

Frequently Asked Questions – FAQ

Select Your Preferred Appointment Now:Free initial consultation