Many – if not the majority – of cases in competition law practice do not only deal with infringements of competition law in the narrower sense. Rather, disputes often revolve around infringements of standards outside the UWG, so-called market conduct rules.
The market conduct rule as a commercial act that violates statutory provisions
The prerequisite for the existence of an infringement of a market conduct rule is, of course, first of all a commercial act within the meaning of Section 2 para. 1 No. 1 UWG. This act must violate a statutory provision. In addition to “traditional” state and federal law, statutory provisions also include directly applicable European regulations and statutes of public bodies (e.g. professional associations).
Legal regulations are not regulations that apply purely between two parties, such as contracts or administrative acts. Pure (company) practices or trade customs (such as the Incoterms) are also not considered rules of market conduct. A breach of these may constitute a breach of the rules applicable between the parties involved, but not a breach of a market conduct rule under competition law.
Market conduct rule: Regulation of market conduct
Essentially, a statutory provision becomes a market conduct rule within the meaning of competition law if it is intended to regulate the market conduct of companies. The question of whether a provision is precisely intended for this purpose is regularly disputed until a relevant court has ruled on the matter. Standards that are not merely intended to regulate internal company activities (e.g. regulations on labour relations) are usually recognized as being intended to regulate market conduct. For example, regulations on store hours, advertising and labeling and information obligations are regularly regarded as market conduct rules under competition law.
A strict distinction must be made between regulations that regulate market behavior and those that regulate market access. For example, public law standards on the admissibility of public companies are not to be regarded as market conduct rules in competition law. As usual, exceptions confirm the rule. This is the case if the provision has a dual function. In other words, if certain requirements are (also) established in the interests of market participants for the exercise of certain professions – such as doctors and lawyers – these provisions may constitute market conduct rules under competition law.
We have dedicated a separate article to a non-exhaustive list of examples of market conduct rules in competition law.
Interest of market participants
Furthermore, a breach of the law by violating a rule of market conduct can only be assumed if the relevant norm is precisely the interest of the market participants pursuant to Section 2 para. § Section 2 para. 1 No. 2 UWG. The regulation must therefore be related to competition in such a way that it protects the competitive interests of the potential suppliers and buyers. In other words, it is precisely the conclusion of exchange contracts on the market that is at issue, which the standard must also affect. Standards that are intended to protect the state and its bodies alone, for example, are therefore not in the interests of market participants.
De minimis clause: Noticeable impairment due to violation of market conduct rule in competition law
Finally, the infringement must be capable of appreciably harming the interests of consumers, other market participants and competitors. This clause serves to “sort out” absolutely minor infringements of the law. One can imagine that in practice, this point in particular is regularly the subject of dispute. Whether it is the missing middle name of the managing director in the legal notice of a business website or the incorrect pricing of a product that can no longer be purchased – some infringements appear to be trivial. The noticeability requirement is intended to do justice to this idea.
