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 misleading advertisements and claims for damages because of such advertisements.
The article deals with the question whether market parties (entrepreneurs, consumers) can claim damages from the opposite side market parties for an infringement of § 2 UWG, i.e., misleading marketing. This question is of particular importance with regard to a recent Austrian case (Austrian Supreme Court dated 20.01.2009, 4 Ob 188/08p) where consumers bought shares in a company because of misleading advertisement and may now sue the company for damages.
The author analyses the legal situation, stating that this issue is very disputed in legal literature and only one old case stating that such claims are permissible exists. She adds that through the implementation of the UCP Directive the wording of the UWG rather allows such damage claims, however, taking into account all the relevant circumstances and the objective of the law, such claims should not be permitted as they would seriously breach the established civil law system for damages.