If there has been an infringement of competition law, the UWG provides for a warning letter as a rule to enforce the resulting claims. Such a warning notifies the infringer of the infringement and gives them the opportunity to settle the matter out of court. This is done, for example, by submitting a cease-and-desist declaration with a penalty clause.
Authorization request as an alternative to a warning letter in competition law
Instead of a warning letter from a competitor, a competition association or other claimants, it is also possible under competition law for the potential claimant to formulate a so-called authorization request. In such a request, the potential infringer is made aware of the (presumed) unlawful conduct. At the same time, he is requested to provide information about the facts justifying the conduct.
In contrast to a warning letter, the request for authorization is not aimed at enforcing claims under competition law (in particular the right to cease and desist), but at exchanging information with the potentially anti-competitive entrepreneur. The requesting party should thus be given the opportunity to assess whether or not the conduct it has identified actually constitutes an infringement of competition law. Depending on the outcome, the inquirer can then decide whether or not to take further legal action.
Response options for those affected
As a request for authorization is usually the preliminary stage of a warning letter, it should be taken seriously by the party concerned. The first step should therefore always be to check whether the inquirer is right to point out anti-competitive behavior.
If this is indeed the case, it is possible to resolve the matter at this stage, e.g. by submitting a preventive cease-and-desist declaration. If such a declaration is submitted, the sender of the request for authorization can no longer issue a warning. However, depending on the circumstances, it may also be advisable not to respond to the request for authorization at all or to find another amicable solution.
Costs of an authorization request in competition law
One particular question is whether the request for payment occasionally sent with an authorization request must be complied with. The answer to this is usually no. Each party bears its own costs in the context of an authorization request. This applies in particular to any legal fees. These are only reimbursable in the context of a justified and effective warning. For this reason, it may also be advisable to submit a preventive cease-and-desist declaration in order to avoid a subsequent warning letter and the associated costs.