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The right to information in competition law

In order to prepare and enforce further claims, competitors have a far-reaching right to information under competition law.

As a rule, the entrepreneur affected by the unfair actions of his competitors is faced with the problem that he cannot adequately quantify his claim for damages, for example, because he lacks the relevant facts. For example, he naturally has no knowledge of the extent of the advantages that a competitor has gained through certain (unfair) advertising measures. This is where the right to information under competition law comes into play and is intended to make it easier for the entrepreneur concerned to enforce further claims (e.g. for the surrender of the profit made from the unfair advertising measure).

Information on the quantification of damages against the infringer

Insofar as the claim for information serves to prepare and enforce another claim – usually a claim for damages – it is described as dependent. According to established case law, the right to information is a prerequisite,

that the injured party is in an excusable state of uncertainty about the existence or scope of his claim for damages or compensation for enrichment and cannot reasonably obtain the information necessary to assert these claims himself, while the infringer can provide it without difficulty, i.e. without being unreasonably burdened (established case law; see only BGHZ 95, 274, 278 f. – GEMA-Vermutung I).

BGH, judgment of April 29, 2010, Ref.: I ZR 68/08

As a rule, it will not be possible for the entrepreneur concerned to find out the relevant facts himself, so that he is dependent on the knowledge of the infringer. For example, he can obtain information from the infringer about the scope and content of an advertising measure as well as the circulation and distribution area of a newspaper/magazine. Based on this, he will be able to calculate damages. The limit of the claim will be drawn where certain information is considered a trade secret. Research into such information is not the subject of the right to information.

Information about the infringer’s relationships with third parties

In addition to the “dependent” right to information, there is also the independent right to information. This does not serve to prepare a further claim, but is intended to enable the entrepreneur concerned to pursue infringements of competition law by third parties. For example, information can be requested about the suppliers and/or customers of a certain product. If they have also acted unfairly, the affected entrepreneur can also assert his claims (in particular claims for injunctive relief) against them.

A separate right to information exists for certain organizations (so-called qualified entities) pursuant to Section 13 UKlaG. § Section 13 UKlaG. However, it “only” serves to enforce claims for injunctive relief and removal and is not available to competitors.

Costs of information in competition law

In all cases, the infringer must bear the costs associated with providing information. It is therefore also up to the infringer to decide to what extent it is cost-effective to provide the information – as long as the information remains complete. If there is any doubt as to the accuracy and/or completeness of the information, the entrepreneur concerned can demand that the infringed party provide an affidavit of the information. Making a false affidavit is punishable by law.

Do not underestimate the impact of the right to information

If enforced consistently, the right to information is a sharp sword of competition law. In practice, the right to information is often not given the attention it might deserve. In this way, valuable information can be obtained for calculating one’s own claim for damages. In the case of extensive acts of infringement, other infringers can also be identified, against whom injunctive relief can then also be enforced. Only then can infringements of competition law be effectively ended in the long term.

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