In competition law, some key terms are defined in Section 2 UWG. In addition to the terms “competitor”, “consumer” and “commercial act”, this also includes the term “entrepreneur”. According to this definition, an entrepreneur is
“any natural or legal person who carries out business activities in the course of their trade, craft or profession, and any person acting in the name of or on behalf of such a person”
§ 2 Abs. 1 No. 6 UWG
The term “entrepreneur” is to be interpreted broadly in competition law
The concept of entrepreneur under competition law must also be interpreted broadly in principle. This applies in particular because the term is based on the implementation of an EU directive, more precisely Art. 2 lit. b) of the UCP Directive. This defines a “trader” (which is used synonymously with the term “entrepreneur”) as
“any natural or legal person acting in the course of a trade, business, craft or profession within the meaning of this Directive and any person acting in the name of or on behalf of the trader”.
Art. 2 lit. b) UCP Directive
The definitions are largely congruent. The EU legislator wanted to achieve the broadest possible protection, which is why institutions that perform a task in the public interest (e.g. statutory health insurance funds) are also covered by the term entrepreneur.
However, it is not necessary for the business to be set up in a commercial manner. Not even the intention to make a profit is necessary. Rather, the broad interpretation of the term “entrepreneur” is intended to ensure that as many people as possible who participate in commercial transactions also comply with the fairness of commercial life and are bound by its rules.
The entrepreneur in competition law is the company owner
An entrepreneur within the meaning of the UWG is always the owner of the company. If this is a company, only the company itself is an entrepreneur within the meaning of competition law. The individual shareholders, on the other hand, are not entrepreneurs and cannot assert claims to which entrepreneurs are entitled under the UWG in their own name. This applies regardless of whether the company is a corporation or a partnership.
Representatives and agents must be entrepreneurs themselves
The second part of the definition is initially somewhat misleading, according to which “any person acting in the name or on behalf of such a person” is also an entrepreneur. This would mean, for example, that employees, staff or organs of an entrepreneur would also be entrepreneurs themselves. However, this is not what is meant and has already been rejected by the ECJ (ECJ judgment of 17.10.2013 – Ref. C-391/12).
The second alternative nevertheless retains an independent significance. The purpose is that in such cases, both entrepreneurs can be claimed against independently and alongside each other or can assert their own claims.
In cases of representation and commissioning, it is irrelevant whether this power of representation or the underlying mandate actually exists with legal effect. It would be unreasonable and in most cases impossible for a third party to find out whether this is the case. Therefore, only the external appearance is decisive for the question of whether a case of representation or commissioning exists.
Differentiation: Entrepreneurs and consumers in competition law
In practice, the question of how to differentiate between traders and consumers is of particular relevance. This question, which is often relevant when selling goods on platforms such as eBay or Amazon, can also only be assessed on the basis of the specific circumstances of the individual case. The same applies to the distinction between an entrepreneur and other third parties.