Section 14 UWG – Injunctive relief

The claim for injunctive relief under Section 14 UWG is the most important legal instrument for stopping unfair business practices before further competition law infringements occur. It enables certain competitors, representative bodies and organisations entitled by law to take action against unlawful conduct in competition and to have its continuation prohibited by the courts. The aim is not to punish a company, but to prevent further infringements.

Select Your Preferred Appointment Now:Free initial consultation

Significance of injunctive relief under the UWG

The claim for injunctive relief under Section 14 UWG is one of the most important instruments of Austrian competition law. Its purpose is to stop unfair conduct as early as possible before disadvantages for competitors, consumers or the market as a whole become entrenched.

Unlike a claim for damages, injunctive relief does not require that financial loss has already occurred. What matters is that unlawful conduct exists or is imminent. This enables swift action against competition law infringements.

Injunctive relief ensures that companies must comply with the same rules of competition. This allows services to compete fairly, and consumers make their decisions based on correct information rather than unfair methods.

Requirements for injunctive relief

A claim for injunctive relief does not arise with every competition law infringement. The law requires certain conditions to be met before a court can prohibit the challenged conduct.

In principle, the following elements must coincide:

• Obligation to refrain
• Risk of first infringement, or
• Risk of repetition

If one of these elements is missing, there is no claim for injunctive relief.

The duty to cease and desist arises from the provisions of competition law. Anyone who breaches these rules or directly prepares a breach must refrain from such conduct.

In addition, the law requires a risk of future infringements. Competition law distinguishes between the risk of first infringement and the risk of repetition. Both situations justify a court-ordered injunction, although their requirements differ significantly.

It is also important that the claim for injunctive relief does not require fault. Even someone who negligently or unintentionally breaches competition law may be obliged to cease and desist.

Obligation to refrain

The duty to cease and desist forms the legal basis of every claim for injunctive relief. It obliges an undertaking to refrain in future from certain conduct or to desist from unlawful conduct that is directly imminent.

As soon as conduct breaches the rules of fair competition, it must not be continued. Injunctive relief serves to enforce this obligation in court if necessary. The aim is to prevent further competition law infringements and ensure fair competition.

For a duty to cease and desist to exist, it is irrelevant whether the responsible party acted intentionally. The decisive factor is solely that the conduct breaches the competition-law requirements or that such a breach is directly imminent.

Risk of first infringement

A claim for injunctive relief can arise even before any competition law infringement has occurred. In this case, this is referred to as a risk of first infringement.

A risk of first infringement exists where specific circumstances indicate that unlawful conduct is intended in the near future. The mere possibility of an infringement is not sufficient. Rather, there must be plausible indications that lead one to expect an imminent competition law infringement.

Such indications may include preparatory acts, specific advertising announcements or other measures that suggest an unfair business practice is about to be carried out. The more concrete the signs, the more likely a preventive injunction may be available.

Since no infringement has yet occurred, the claimant must prove the risk of first infringement in the event of a dispute. The court examines whether, in light of the circumstances of the individual case, there is in fact a risk that an infringement will occur in the near future.

Risk of repetition

If a competition law infringement has already occurred, the risk of repetition is central to the legal assessment. In practice, it is the most common basis for a claim for injunctive relief.

The law assumes that anyone who has already breached competition law will engage in such conduct again. For this reason, the risk of repetition is presumed. The claimant therefore does not have to prove separately that a further infringement is imminent.

For the affected party, this means a significant облегчение in enforcing their rights. Instead of having to prove the risk of a renewed infringement, they can rely on the statutory presumption.

Standing to sue

Not everyone can assert a claim for injunctive relief under Section 14 UWG. The law specifies precisely which persons and organisations are entitled to take action against competition law infringements. This is intended to ensure that infringements are pursued effectively while preventing abusive lawsuits.

Standing to sue is primarily linked to the question of who is affected by the competition law infringement or whose interests are impacted by the challenged conduct. In addition to competitors, certain associations and institutions may therefore also take action.

Select Your Preferred Appointment Now:Free initial consultation

Competitors directly and indirectly affected

The most important group entitled to bring claims are competitors. The law understands this to mean undertakings that offer goods or services of the same or a related kind and target the same or a comparable customer base.

Standing to sue does not exist only for companies that were directly harmed by the competition law infringement. Competitors who are only indirectly affected may also, under certain conditions, assert a claim for injunctive relief.

The reason is that competition law infringements often do not disadvantage only individual companies. Anyone who gains advantages through unfair methods often influences the competitive conditions of an entire industry. For this reason, it is sufficient if a competitive relationship exists between the companies. It is enough if their activities have points of contact and they compete for the same customer base.

Competitors may assert a claim for injunctive relief in particular in the case of the following competition law infringements:

• Unfair business practices (Section 1 UWG)
• Aggressive business practices (Section 1a UWG)
• Misleading business practices (Section 2 UWG)
• Comparative advertising (Section 2a UWG)
• Publication of a misleading statement in a newspaper (Section 3 UWG)
• Bribery of employees and agents (Section 10 UWG)

Associations and institutions

In this context, associations for the promotion of the economic interests of undertakings are of particular importance. Such associations can take action against competition law infringements even if they are not directly affected themselves.

In addition, the law grants several institutions their own standing to sue. These include, among others, the Austrian Federal Economic Chamber, the Federal Chamber of Labour, the Presidents’ Conference of the Austrian Chambers of Agriculture, the Austrian Trade Union Federation, and the Federal Competition Authority.

They may take action in the case of the following infringements:

• Unfair business practices vis-à-vis competitors (Section 1 UWG)
• Aggressive business practices (Section 1a UWG)
• Misleading business practices (Section 2 UWG)
• Comparative advertising (Section 2a UWG)

In the case of aggressive or misleading business practices, the Association for Consumer Information may also take action. This is intended to ensure that competition law infringements are not pursued only by individual companies, but can also be combated in the interest of a functioning market.

Consumers

For individual consumers, Section 14 UWG provides no general standing to sue. Although competition law also serves to protect consumers, enforcement is carried out by competitors, associations and institutions designated by law.

The legislature thereby pursues the aim of combating competition law infringements centrally and efficiently. Instead of conducting numerous individual proceedings, specialised entitled parties are to take action against unfair business practices.

Nevertheless, consumers are not left without protection. The Association for Consumer Information (VKI) can assert claims for injunctive relief where consumers are adversely affected by certain business practices. These include in particular:

• Aggressive business practices Section 1a UWG
• Misleading business practices Section 2 UWG
• Comparative advertising Section 2a UWG

Enforcement of injunctive relief

Anyone affected by a competition law infringement may enforce their claim for injunctive relief out of court or in court. In many cases, the responsible party is first requested to cease the challenged conduct. If they do not respond or reject the demand, the claim may be asserted before the courts.

Enforcement aims to prevent further competition law infringements as quickly as possible. Particularly in competition law, time is often decisive. The longer unlawful conduct continues, the greater the economic disadvantages for competitors and consumers may become.

Injunction action

The injunction action is the central instrument for enforcing injunctive relief in court. By it, the claimant requests that the court prohibit the defendant from engaging in certain anti-competitive conduct in the future.

A prerequisite for a successful action is the existence of a duty to cease and desist and a risk of first infringement or risk of repetition. These requirements must exist at the latest by the end of the hearing at first instance.

If the court concludes that a competition law infringement exists and that further infringements are to be feared, it issues a corresponding injunction order. If the defendant later breaches this prohibition, further legal steps may follow, up to and including enforcement proceedings.

Settlement by way of injunction

Not every competition dispute ends with a judgment. The parties often reach a settlement by way of injunction.

In doing so, the respondent undertakes to refrain from the challenged conduct in the future. A settlement often offers advantages for both sides. Court proceedings can be avoided, costs reduced, and legal uncertainties resolved more quickly.

A settlement by way of injunction is also relevant to the question of the risk of repetition. According to case law, a serious and sufficiently far-reaching settlement offer may indicate that no further infringements are to be expected in the future.

However, not every settlement offer is sufficient. The settlement must show that the responsible party genuinely intends to cease the challenged conduct. If doubts remain about this willingness, the risk of repetition may still exist despite the settlement offer.

Cessation of the risk of repetition

The risk of repetition does not exist indefinitely. Under certain conditions, it may cease, thereby removing the basis for a claim for injunctive relief.

Cessation may be considered where the responsible party clearly demonstrates that they will not commit any further competition law infringements in the future. A mere assertion is not sufficient. Rather, there must be objective circumstances that make a repetition appear unlikely.

Such cessation may exist where the unlawful state has been fully remedied and the responsible party no longer defends the challenged conduct. A serious undertaking to cease and desist or acknowledgement of the asserted claim may also argue against the existence of a risk of repetition.

Whether the risk of repetition has in fact ceased always depends on the circumstances of the individual case.

Distinction from the claim for removal under Section 15 UWG

The claim for injunctive relief and the claim for removal pursue different objectives, even though in practice they are often asserted together.

The claim for injunctive relief is directed at the future. It is intended to prevent unlawful conduct from being repeated or carried out for the first time.

By contrast, the claim for removal under Section 15 UWG addresses an unlawful state that already exists. Its purpose is to remove the consequences of a competition law infringement and thereby restore the lawful situation.

Both claims complement each other. While injunctive relief is intended to prevent future infringements, the claim for removal ensures that competitive distortions that have already occurred do not persist.

Limitation period for injunctive relief

Claims for injunctive relief also cannot be asserted indefinitely. The UWG provides special limitation periods for this purpose.

The subjective limitation period is six months. It begins as soon as the entitled party becomes aware of the legal infringement and the identity of the responsible party. From that point, the claim must be asserted in court within six months.

Irrespective of this, an objective limitation period of three years from the legal infringement applies. After this period has expired, the claim for injunctive relief can no longer be enforced in court, even if the entitled party only became aware of the infringement later.

The short limitation period corresponds to the purpose of competition law. Competition law infringements are to be clarified promptly and not litigated years later.

Early legal review helps to comply with deadlines and enforce existing claims in good time.

Your Benefits with Legal Assistance

Competition law disputes often develop very quickly. Even a single advertising statement, an unlawful business practice or misleading information can lead to significant legal and economic consequences. At the same time, injunctive relief involves numerous particularities, for example regarding the risk of repetition, the risk of first infringement or the correct wording of an application for an injunction.

A lawyer’s review helps to identify risks at an early stage and choose the appropriate strategy. This applies both to companies seeking to enforce their rights and to businesses confronted with a cease-and-desist letter or a lawsuit.

Your benefits at a glance:

• Legally sound assessment of the prospects of success of a claim for injunctive relief or a defence against unjustified demands.
• Professional drafting and enforcement of claims so that competition law infringements are ended effectively and sustainably.
• Avoidance of costly mistakes, in particular regarding deadlines, settlement offers and court proceedings.

Select Your Preferred Appointment Now:Free initial consultation

Frequently Asked Questions – FAQ

Select Your Preferred Appointment Now:Free initial consultation