Legal Literature

Unfair Commercial Practices Directive, Chapter 1, Article 2 Unfair Commercial Practices Directive, Chapter 2, Article 5

The implementation of the UCP Directive brought a new division of fair trading into protection of the competitor and protection of the customer. This article reviews how this renewal could bring an alteration to the capacity to sue or to be sued.

On the one hand the UCP Directive seizes the relationship among entrepreneurs ("Business to Business"- B2B) and on the other hand the one between entrepreneurs and customers ("Business to Customer"- B2C). Article 11 of the UCP Directive obliges the member states to find suitable instruments in order to ensure meeting the commitments of the Directive. These instruments must contain legal provisions for the ones who have a legitimate interest on the controlling of unfair commercial practices (including competitors), to take legal actions against such practices. This includes consumers, competitors, but also interest groups, such as the chamber of economy (WKÖ) which are as well entitled to sue.

The article discusses whether it is necessary for the customer to be in a competitive relationship in order to be affected by the UCP Directive. In terms of capacity to be sued the question is to which extent the employees of the various businesses incur liability for their negligence. It is concluded that through the implementation of the UCP Directive the respective provisions of the Austrian Unfair Competition Act was adapted to no longer require that the practice was made "intentionally in competition"; thus, in case of an infringement, every single consumer has basically the right to claim cease and desist and damages.