Enforcement fiche for AustriaB a c k
|I. ADMINISTRATIVE ENFORCEMENT|
|Which administrative mechanisms are available to enforce the UCP Directive?||
In general, the Austrian Unfair Competition Act (Bundesgesetz gegen den unlauteren Wettbewerb - UWG) provides for enforcement through court action. Only certain types of unfair practices as set out in Part 2 of the UWG (§§ 27-34) may be sanctioned by the Regional Administrative Authority with a fine up to EUR 2900 provided they do not fall within the scope of criminal court sanctions. The provisions regarding administrative enforcement have already been in force prior to the implementation of the UCP Directive..
|Who can file administrative complaints?||
The administrative proceedings are initiated ex officio.
|Do any specific procedural requirements apply to filing administrative complaints?||
|Do the administrative authorities have an obligation to investigate the complaint?||
The UWG does not provide for such an obligation.
|Are there any specific requirements regarding the provision of evidence to the competent authorities?||
The UWG does not contain such requirement.
|II. ENFORCEMENT THROUGH COURT ACTION|
|Which court actions are available to enforce the UCP Directive?||
The action for cease-and-desist (§§ 14, 15 UWG) is the main legal remedy to enforce the UCP Directive. In addition, an action for damages is available pursuant to the applicable provisions of the General Civil Code (ABGB). Pursuant to § 16 UWG, the action for damages includes the claim for loss of profits. In practice, claims for damages are a weak remedy due to the difficulty to prove the actual damage. In case of a legitimate interest, the successful party of an action for injunctive relief, is entitled to publish the favourable judgment at the costs of the losing party. The party taking legal action has the right to request information from postal or telecommunications services providers about name and address of users if there are reasonable grounds for suspecting that a user is engaging in unfair commercial practices (§ 14a UWG).
|Who can start a court action?||
Any person directly affected as well as competitors, associations promoting economic interests of business operators as far as they represent interests that are effected by said practices, the Federal Chamber of Employees (Bundeskammer für Arbeiter und Angestellte), the Federal Chamber of Commerce (Wirtschaftskammer Österreich), the Assembly of the Presidents of the Austrian Chambers for Agriculture (Präsidentenkonferenz der Landwirtschaftskammern Österreichs), the Austrian Trade Union (Österreichischer Gewerkschaftsbund), the Federal Competition Authority (Bundeswettbewerbsbehörde) and the Association for Consumer Information (Verein für Konsumenteninformation) in case of unfair B2C commercial practices can start actions for injunctive relief due to unfair commercial practices.
|Can court actions be initiated by competitors?||
Yes, even if they are not directly affected by the unfair commercial practice.
|Can the case be handled through an accelerated procedure?||
An action for injunctive relief may be filed together with a motion for interim injunction pursuant to § 24 UWG. This is an effective provisional remedy to stop the unlawful practice until the regular action for injunctive relief is decided in full scale proceedings by a legally binding judgment. The advantage of filing for an interim injunction is that the facts have not to be proven but only certified on a prima facie basis in order to show credibly.
|Are there any specific requirements regarding the provision of evidence to the court?||
Pursuant to § 1 (5) UWG the business operator has to establish the accuracy of factual claims in connection with a commercial practice where, given the particular facts and circumstances of the case, such a requirement appears appropriate in view of the legitimate interests of the business operator and other market participants. In line with Austrian Civil Procedure Law, the plaintiff has to allege and prove all relevant facts to establish the claim, and unless a violation has already taken place, the imminent risk of an unfair commercial practice to occur.
|What are the possible civil sanctions and remedies for the infringement of the UCP provisions?||
Injunctive relief, removal of the impairment, damages and publication of the judgment are the available civil remedies. It is important to note that an action for injunctive relief can also be filed against the holder of a business if the unlawful action has been set in the course of his business by a different person (§ 18 UWG). The holder of a business is liable for damages if he has known or should have known about the infringing conduct.
|What are the possible criminal sanctions for the infringement of the UCP provisions?||
A monetary fine of up to 180 per diems may be imposed on a person who, in the conduct of business, knowingly engages for competitive purposes in aggressive or misleading commercial practices in a public announcement or in any media by a court. Imprisonment of up to three months or a monetary fine up to 180 per diems may be imposed on a person who offers a gift or other advantages to an employee of a business in order to receive privileged treatment due to an unfair conduct of the employee (bribery-§ 10 UWG). The sanction may also be imposed on the employee who demands or accepts the advantage. Imprisonment of up to three months or a monetary fine up to 180 per diems may be imposed on an employee or a competitor who violates trade secrets (§§ 11, 12 UWG).
|What are the possible administrative sanctions for the infringement of the UCP provisions?||
A fine of up to EUR 2900 may be imposed by the Regional Administrative Authority for infringements regarding the prohibition to conclude contracts with a pyramid promotional scheme and to distribute goods following games of chance, the prohibition to refer to bankruptcy assets with the sale of goods, the prohibition of displaying not obtained quality marks or violation of regulations regarding labelling.
|What are the contractual consequences of an administrative order or a judgement relating to an unfair commercial practice on an individual transaction?||
The UWG does not provide for contractual consequences. An administrative order has no effect on a contract. A judgment only produces effects between the procedural parties. According to general civil law, a consumer alleging mistaken consent by the conclusion of the contract due to an unfair commercial practice of his counterparty may file a court action to eliminate the void contract.
|How can consumers get redress/compensation (e.g. through collective actions)?||
Consumers are entitled to file an action for injunctive relief only if they are directly affected by an unfair commercial practice. Consumers may file a claim for damages subject to the rules of Austrian tort law. Austrian statutes do not provide for collective redress (class actions). To protect the interests of consumers, the Association for Consumer Information may file an action for injunctive relief in case of unfair B2C commercial practices.
|Can the administrative authorities or the courts require the publication of their decisions?||
The administrative authorities do not have the power to order the publication of their decisions. Upon an action for cessation the court has to grant the successful party upon request and given a legitimate interest, the right to publish the judgment within a specified period at the costs of the losing party (§ 25 UWG).
|IV. OTHER TYPES OF ENFORCEMENT|
|Are there any self-regulatory enforcement systems in your jurisdiction that deal with aspects of the UCP Directive?||
The Austrian Advertising Standards Alliance (ÖWR) is an association with the object to control the advertising industry. The ÖWR established a Code of Conduct for Advertising to prevent misuse of advertising in order to protect consumers and investigates complaints of consumers. The ÖWR evaluates the advertisement according to Austrian statutes and the Code of Conduct for Advertising and may decide to request the change or the stop of the advertising in the event of non-compliance..
|Are there any mediating services that deal with aspects of the UCP Directive (e.g., an ombudsman)?||
The Austrian Institute for Applied Telecommunications (OIAT), an independent non-profit organisation, developed and operates the Internet Ombudsman in cooperation with Austrian business, consumer and government organisations. The Internet Ombudsman is an alternative dispute resolution (ADR) service for customers and businesses dealing with complaints regarding E-commerce, in particular online-shopping.