A regular subject of competition law disputes is the so-called injunctive relief. If, for example, an entrepreneur discovers unfair behavior on the part of a competitor, he can force the competitor to stop the behavior. Pursuant to Section 8 of the German Act Against Unfair Competition (UWG), a claim for injunctive relief can be asserted against anyone who carries out a commercial act that is unlawful under Section 3 or Section 7 if there is a risk of repetition.
Who can be entitled to injunctive relief under competition law?
The claimants of such injunctive relief can be competitors, associations with legal capacity for the promotion of commercial or independent professional interests, qualified institutions and chambers of industry and commerce or chambers of crafts. In practice, injunctive relief is often sought by competitors or the aforementioned associations. Consumers – even if the protective purpose of competition law also includes them – cannot assert claims against companies.
Against whom is a claim for injunctive relief in competition law directed?
As a rule, the claim for injunctive relief is directed against the actual perpetrator of the unlawful act. The accomplice or participant in the act is also liable in the same way as the perpetrator. The latter can acc. § 830 Abs. 2 BGB as an instigator or accomplice of an unfair act under competition law if he or she intentionally assisted the perpetrator in the act.
According to current case law, liability as a so-called disturber is not (or no longer) an option. However, this is replaced by the liability of the perpetrator who has breached certain duties of care. The benchmark here is the entrepreneurial diligence that must be observed in business transactions.
In order to do justice to the usual structures in business practice, the law in § 8 para. 2 UWG provides for an extension of liability. Infringements of competition law committed in a company by an employee or agent also make the owner of the company liable for injunctive relief (and removal).
Risk of repetition or risk of first occurrence as an essential prerequisite for injunctive relief
An essential prerequisite for injunctive relief is the existence of the so-called risk of repetition. This means that there must be a serious possibility of the infringement of competition law being repeated. According to the relevant case law, the existence of the risk of repetition is presumed in the case of an infringement that has already occurred.
A (then “preventive”) claim for injunctive relief can also be justified if the commission of the infringing act is still imminent. For this, it is necessary that the so-called risk of first infringement can be assumed. This in turn requires a serious risk of an imminent infringement of competition law. This is the case, for example, if the entrepreneur has already carried out preparatory acts for an unfair act. In view of the high legal requirements for the risk of first infringement and the competitor’s burden of proof for the necessary facts, these cases are rarer in practice.
No fault required
An important aspect in the question of liability for omission is that fault is not required. It therefore does not matter whether someone has acted intentionally or negligently. If the infringement has actually occurred, the person acting is liable. However, this is a special feature of the claim for injunctive relief. For example, fault is required for a competitor’s claim for damages, which is also conceivable.
Do not confuse: Claim for removal
The right to removal is also regulated by law. This is often associated with injunctive relief, but must be kept strictly separate in legal terms. The injunctive relief is aimed at preventing future infringements, while the claim for removal is aimed at eliminating disturbances that have already occurred. This means that if falsely labeled goods have been offered, this must be refrained from in the future (injunction) and existing offers must be corrected (removal).
Fulfillment of the cease-and-desist claim by submitting a cease-and-desist declaration and declaration of commitment
The claim for injunctive relief is fulfilled by eliminating the risk of repetition. If you are still out of court, this can be done by submitting a so-called cease-and-desist declaration with a penalty clause. This specifically describes the unfair behavior and promises to cease and desist in the future. An appropriate contractual penalty must be promised in the event of another infringement.
If a preventive injunction claim is asserted, the underlying risk of first occurrence can already be settled by a serious declaration that the competitive behavior will not be carried out under any circumstances.
If the matter is not settled out of court, but a court must decide on the injunction claim, this is done with a corresponding injunction order. The party concerned is then obliged to cease and desist from the anti-competitive behavior under threat of a fine (usually up to € 250,000) or imprisonment.