Any inadmissibility under competition law presupposes a commercial act. It ultimately opens up the scope of application of the Unfair Competition Act (UWG) and is therefore of central importance.
Definition of a commercial act in competition law
The law defines the term “commercial act” in Section 2 para. 1 No. 1 UWG as follows:
“any conduct by a person for the benefit of his own or another person’s business before, during or after a business transaction which is objectively connected with the promotion of the sale or purchase of goods or services or with the conclusion or performance of a contract for goods or services; goods include land, and services include rights and obligations;”
§ 2 Abs. 1 No. 1 UWG
This very broad definition makes it possible in practice to include numerous types of conduct (not only by entrepreneurs) from protection under competition law. It is essential that the conduct is objectively related to the promotion of the sale or purchase of goods or services. The term “goods” and “services” must be interpreted broadly.
The conduct must also be for the benefit of a company. This then also results in the specific reference to competition. As a result, private individuals can also carry out a commercial act if their actions are for the benefit of a company (e.g. the regular sale of goods for a company).
Actual sales promotion required
In order to be considered a “commercial act” under competition law, the relevant act must actually promote the sale or purchase of one’s own or another company. If the act is carried out by an entrepreneur himself, this requirement is (rebuttably) presumed if the act does not differ significantly from typical entrepreneurial activities. For example, classic advertising activities of a company are classified as typically promoting sales. In the above-mentioned example of a private individual, however, the promotion of sales is not presumed but must be positively established.
Occasionally, the concrete connection between action and sales promotion is also discussed. However, as long as the conduct objectively has the aim of influencing the decision of the other side of the market with regard to products, this connection can be assumed. As long as an act is therefore aimed at promoting sales or purchases, an act can also be considered a commercial act under competition law.
Press coverage can be a commercial act under competition law
A special feature applies in the area of media reporting. The aforementioned presumption of sales promotion does not apply there as long as the reporting is done in the interest of informing the public. Otherwise, the constitutionally guaranteed press and broadcasting privilege would be too severely restricted. A commercial act can only be assumed if the “reporting” is of a purely advertising nature (e.g. in the case of so-called reader advertising). However, careful consideration will have to be made in each individual case – also in view of the different case law.