The UWG serves acc.
§ Section 1 of the UWG serves to protect competitors, consumers and other market participants from unfair business practices.
It also protects the public interest in undistorted competition.
The current amendments (
Amendment to the UWG: Definitions and clarifications
The law is to be supplemented by the term “professional diligence” in accordance with § Section 2 para. 1 No. 7 UWG-E as the respective standard to be observed vis-à-vis consumers, competitors and other market participants. According to the new version of the law, business actions are unfair if, among other things, they do not comply with the professional diligence applicable to the entrepreneur and are capable of significantly influencing the economic behavior of the consumer.
The definition of “materially influencing the economic behavior of the consumer” is also to be added. This is to be deemed to exist if a commercial act is likely to significantly impair the consumer’s ability to make an informed decision and thus cause the consumer to make a commercial decision that they would not otherwise have made.
General clause
Section 3 UWG is also to be restructured as a general clause of the law. The unfairness of commercial acts towards consumers is to be regulated by the modified para. 2 (“breach of professional diligence and material influence“). In future, commercial acts towards competitors are to be judged according to the new para. 3 (“breach of professional diligence and aptitude to appreciably prejudice interests“). The aspects to be taken into account in business dealings with consumers are specified in the newly inserted para. 5:
The assessment of commercial acts towards consumers must be based on the average consumer or, if the commercial act is aimed at a specific group of consumers, on an average member of this group. The perspective of an average member of a group of consumers who are particularly vulnerable and clearly identifiable due to mental or physical infirmity, age or credulity must be taken into account if it is foreseeable for the trader that his commercial act only affects this group.
Amendment to the UWG: Rebuttable presumption of unfairness
Contrary to the previous regulation, the realization of the examples mentioned in Section 4 UWG will no longer lead to the unfairness of the commercial act per se. Instead, only the presumption of a breach of professional diligence is to be established. However, this presumption can also be rebutted. In addition, an act must be capable of significantly influencing the consumer’s behavior or noticeably impairing the interests of competitors or other market participants.
However, aggressive commercial actions towards consumers should be unfair per se. This is to be regulated in the newly introduced Section 4a UWG-E. Harassment, coercion, including the use of physical force and the exploitation of a position of power to exert pressure are named as actions here.
No perceptibility in the event of misleading information
Contrary to the previous application, the assessment of misleading commercial acts in accordance with § Section 5 UWG is no longer required for the assessment of misleading commercial acts. Only the suitability of the commercial act to induce the consumer to make a commercial decision that would otherwise not have been made should be sufficient.
Omission
The withholding of material information from consumers should only be unfair if the consumer needs it under the circumstances in order to make an informed business decision (Section 5a (2) No. 2 UWG-E). This should also include the failure to provide information in good time.
No change to be expected in the application of the UWG
In its statement, the Federal Government assumes that the amended version of the law will not result in a different application of the law. The previous version had already been applied in accordance with European law. Accordingly, the amendments are more clarifications than deviations from the previous law.
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