Lawyer for competition law - UWG

But what actually happens to companies or service providers if they violate the UWG? In the first instance, the provisions on penalties and fines are also found in the UWG. These can be found in Sections 16, 19 and 20 UWG. In case of doubt, misconduct under the UWG may result in a fine or even imprisonment. Among other things, punishable is:

• Inducing and offering to betray business and trade secrets or to make unauthorized use of templates.
• Betrayal of business and trade secrets
• Unauthorized use of templates or regulations entrusted in the course of business, in particular drawings of models, etc.
• Anti-competitive pyramid schemes
• Special cases of misleading through untrue statements in public announcements or notices with a larger addressee group.
  
  

Anyone who acts in breach of the regulations pursuant to Section 7 of the German Unfair Competition Act (UWG) will also be punished. This applies both intentionally and negligently. § Section 7 UWG deals, among other things, with telephone calls without the prior express consent of the called party. It states:

§7 - Unacceptable harassment
(1) A commercial act which unreasonably harasses a market participant shall be impermissible. This applies in particular to advertising, although it is recognizable that the addressed market participant does not want this advertising.
(2) Unreasonable harassment shall always be presumed to have occurred

1. in the case of advertising by means of a telephone call to a consumer without the consumer's prior express consent or to another market participant without the consumer's at least presumed consent,
2. in the case of advertising using an automatic calling machine, fax or electronic mail without the prior express consent of the addressee, or [...].

If a case pursuant to Section 7 (1) sentence 1 in conjunction with (2) number 1 or 2 exists, then the acting party may be fined up to € 300,000.

The purpose of this standard is, among other things, to protect the private and business sphere of market participants vis-à-vis companies and service providers. This protection is no longer guaranteed if you have to deal with someone acting on business without or even against your will. One is thus disturbed in one's rest or other occupations. The protection of the private and business sphere therefore has a higher priority than the economic profit motive of the entrepreneur or service provider.

In particular, harassment is deemed to occur if a business act, especially an advertising measure, is imposed on the recipient against his or her apparent or presumed will and can be perceived as annoying, regardless of its content. This is the case if the market participant's attention is drawn away from other matters or if its facilities or resources are tied up. It does not constitute harassment simply because the recipient cannot relate to the advertising. Therefore, if the advertising violates moral, religious, ideological or political views, it is not always necessarily a case of § 7 UWG. § Section 7 I UWG is therefore not an instrument for controlling the content of an advertisement.

Whether such an element of § 7 UWG exists is also assessed here in the same way for an average market participant. Thus, in the specific case, it is not a question of the subjective perception of the potentially disturbed, but of the (similar to misleading or aggressive commercial acts) normally informed, attentive but critical average consumer. Another similarity is, if the measure of the entrepreneur or service provider is directed at a certain group such as children, senior citizens or foreigners, then the average consumer or average market participant is also to be formed from this group.