Legal Literature

Unfair Commercial Practices Directive, Chapter 2, Article 5

The Amendment to the Act Against Unfair Commercial Practices (UWG) which led to the detailed implementation of the UCP Directive into Austrian law, has changed Austrian provisions on unfair competition through "breach of law", i.e. that the breach of (any) law or law-like regulation can at the same time constitute a breach of the UWG.

This article deals with the question whether possible breaches of the Austrian Federal Act on Competitive Tendering (Bundesvergabegesetz = BvergG) can constitute unfair competition, despite the fact that the BvergG sets forth rules on sanctions on breaches of its own. According to case law, this was the case prior to the implementation of the UCP Directive.

The article sums up some new case law and concludes that it is still possible to claim unfair competition in case of a breach of the BvergG. However, if such claim is based on a direct breach of the BVergG, it requires an official decision of the competent Austrian Authority on Competitive Tendering, the Bundesvergabeamt. However, such decision is only given after the acceptance of a tender. If such claim is based on other aspects than a direct breach of the BvergG, a cease-and-desist claim does not require such official decision. In both cases it is required that the breach has noticeably impacted the tendering procedure and that the breach of the respective provision is apparent.