The German Act against Unfair Competition (UWG)

The professional association of legal journalists has recently published a guide regarding the UWG which ought to help laymen and laywomen understand the complexity of the law. Find out more here.

The Law against Unfair Competition (UWG) also knows the possibility of an association, taking a complaint to court.

It serves to protect competitors, consumers and other market participants.  According to § 3 UWG, those acts are not permitted which are likely to significantly affect competition to the detriment of the competitors, consumers and other participants on the market. For example, one cannot disparage the goods of a competitor, obscure the advertising character of a competition, specifically hinder competitors or exploit the commercial inexperience of children and adolescents (§ 4 UWG).

Object and purpose of the complaint

The purpose of the complaint is usually the elimination or the omission of an act. When activities with competitive disadvantages are carried out and profit is made to the detriment of a large number of customers, § 10 UWG provides the skimming of excess profit. This means that associations, competitors and consumers can demand the surrender of this profit. If the competitor has suffered damage, s/he can claim compensation.

Procedural requirements

Prior to initiating court proceedings, parties should give a written warning to admonish the debtor and should give her/him the opportunity to resolve the dispute by incurring the obligation to cease and desist subject to a reasonable contractual penalty (§ 12 Abs. 1 UWG). The warning procedure is not obligatory but it is quite usual in practice.

If a warning letter has been omitted and during trial, the opposing party directly admits her/his own guilt, then the plaintiff must bear the costs (§ 93 ZPO). A court hearing would have not been necessary if a previous warning had been given.

Through a prior warning letter, many disputes in the area of ​​unfair competition can actually be settled without resorting to the courts.

Qualified organisations

The special feature of the UWG is that an affected consumer cannot use this law to enforce any rights himself. He/she can only turn to a consumer center which has the  capacity to bring proceedings.

Economic associations, consumer associations, chambers of industry and commerce, as well as the Chamber of Crafts,

can be authorized to bring a case to court (§ 8 UWG). But also anti-discrimination associations can use this possibility under the UWG. To this end, they have to have (included) consumer protection in their statutes. Actions under the UWG in connection with the AGG would, for example, be conceivable in the case of discriminatory advertising.

© Büro zur Umsetzung von Gleichbehandlung e.V. 2011