Abstract
The Austrian Group considers the laws in Austria, especially the Austrian Unfair Competition Act – UWG, to be sufficient to deal with commercial practices where a business commits a breach of its own CSR policy. Nevertheless, the Austrian Group is of the opinion that the laws should be amended respectively clarified in details. Furthermore, there seems to be a demand for more transparency in relation to (CSR) policies, also for making it possible to detect and enforce a breach thereof. On the other hand, the enforcement of CSR policies should not have the effect of a technocratic system of (de facto obligatory) CSR rules lacking legitimate democratic background.
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Notes
- 1.
Strigl, Corporate Social Responsibility in Austria, http://oin.at/_publikationen/PublikationenALT/Fachartikel/Strigl%202004%20csr%20in%20austria.pdf.
- 2.
- 3.
E.g., Sec 7 of the Lobbying Transparency Act (“Lobbying- und Interessenvertretungs-Transparenz-Gesetz”); Sec 4 para 8 Austrian Broadcasting Act (“ORF-Gesetz”).
- 4.
Compare Art 3 para 8 Unfair Commercial Practices Directive.
- 5.
“Richtlinie ‘Arzt und Öffentlichkeit’” by the Austrian Chamber for Medical Doctors.
- 6.
“Richtlinie für die Berufsausübung” by the Austrian Chamber for Attorneys At Law.
- 7.
“Berufungsordnung” by the Austrian Chamber of Pharmacies.
- 8.
Bundesgesetz gegen den unlauteren Wettbewerb – UWG.
- 9.
Sec 1 para 4 no 4 UWG.
- 10.
- 11.
Austrian Supreme Court 12.08.1996, 4 Ob 2131/96b.
- 12.
See below, Sect. 22.3.
- 13.
- 14.
Based on Law on Standards 1971 (“Normengesetz 1971”).
- 15.
Sec 5 Normengesetz 1971.
- 16.
E.g., ÖNORMEN for electronic technology (“ElektrotechnikV”) or for packaging (“VerpackungsV”).
- 17.
- 18.
- 19.
Regulation on Seal of Quality for Accredited Companies (“Meisterbetrieb GütesiegelV”).
- 20.
Several Regulation on Test or Guarantee Signs (also from foreign countries). See also Sec. 4, 6 Trademark Act (“MarkenschutzG”).
- 21.
See item (I) above.
- 22.
Compare Wiltschek, Smaragd®, Federspiel® und Steinfeder®. Qualitätsmarken als Herkunftskennzeichen, ÖBl 2011, 292.
- 23.
- 24.
- 25.
Austrian Supreme Court 09.10.1990, 4 Ob 132/90 and 18.05.1993, 4 Ob 38/93 and 28.11.2012, 4 Ob 202/12b.
- 26.
Austrian Supreme Court 28.11.2012. 4 Ob 202/12b.
- 27.
See above the broad legal definition of this term.
- 28.
“(1) Allegations and representations within the meaning of this Act shall also include illustrations and other activities which are designed and suitable to substitute verbal representations. (2) Any addition, omission, restriction, change or other activity of such kind or form as to escape observation or notice if no special attention is observed shall not preclude application of this Act in the event of any action prohibited under this Act.”
- 29.
For details, see below, Sect. 22.5.
- 30.
Kodek/Leupold in Wiebe/Kodek UWG2 § 14/69, and references.
- 31.
Kodek/Leupold in Wiebe/Kodek UWG2 § 14/101 et seq.
- 32.
Sec 16 UWG.
- 33.
Kodek/Leupold in Wiebe/Kodek UWG2 § 14/69 and references.
- 34.
Sec 4 UWG.
- 35.
Sec 14a UWG: “(1) Entrepreneurs, who offer postal or telecommunication services and who process for their commercial service activities names and addresses received by their users, are – upon written request (para 2) of one of the bodies capable to file suits according to Section 14 para 1 second and third sentence or the Schutzverband gegen unlauteren Wettbewerb, in case of a reasonable suspicion of an unfair practice of that user according to Sections 1, 1a or 2 – obliged to render this data in writing in an appropriate period of time. These [entrepreneurs] are only obliged to render information insofar as such data is without further inquiries available and is connected with a domestic mailbox or a domestic telephone number not registered in a listing of participants which is commonly accessible. (2) The party requiring information has – by otherwise loss of his right to receive information – to state in his request the reasons for his suspicion and has to lay down that he needs the data mentioned in para 1 for the prosecution of his rights against unfair commercial practices according to Sections 1, 1a or 2, that he [will] use such only in this respect and cannot receive such through commonly accessible means of information. (3) The party requiring information with the exception of the Federal Competition Authority has to reimburse appropriate costs for the rendering of information to the provider of services. He has also to hold him harmless for all possible claims of users that may arise from the rendering of information. He has to store a copy of the written request for the period of three years.”
- 36.
Sec 15 UWG: “The claim for a cease-and-desist order shall also include the right to demand from the liable [party] the elimination of a condition which is contrary to the law, to the extent that the liable [party] has the disposition thereof.”
- 37.
Sec 25 UWG: “(1) In the cases of Sections 4 and 10, publication of the sentence may be ordered at the expense of the sentenced party. (2) In the cases of Sections 4 and 10, the court may, upon application by the acquitted party, authorise such party to have the acquittal published at the expense of the plaintiff in the private prosecution within a specified period of time. (3) Where, except in the cases of Sections 11 and 12, a suit for a cease-and-desist order is undertaken, the court shall, upon application, authorise the prevailing party, if such [party] has a legitimate interest in it, to have the sentence published at the opposing party’s expense within a specified time limit. (4) The publication shall comprise the wording of the sentence. The manner of publication shall be defined in the sentence. (5) In civil proceeding[s], the court may, upon application by the prevailing party, define a text of the publication which varies from or supplements the scope or wording of the sentence. Such application shall be filed not later than four weeks after the sentence has become final. If such application is only filed after the end of the [first instance] hearing, it shall be decided by the court of first instance by an order after the sentence has become final. (6) Upon application of the prevailing party, the court of first instance shall specify the costs of publication and shall order the opposing party with the reimbursement. Upon application of the prevailing party, [the court] can order the loosing party to a prepayment of the presumable costs for publication in a period of four weeks. From an order of prepayment of [publication] costs has to be refrained if the loosing party certifies that the circumstances of its income and property do not suffice such a payment for the time being. The course of the time period for the publication of the sentence shall be stayed by the application for the deposit of the presumable costs of publication until the day of the arrival of the prepayment or the dismissal of this application. After publication was effected the prevailing party has under notification of the actual accrued costs to refund to the loosing party an exceeding amount including interest. (7) Publication based on a final sentence or another enforceable writ of execution shall be made by the media entrepreneur without any unnecessary delay.”
- 38.
Sec 24 UWG.
- 39.
Sec 146 et seq Austrian Penal Act.
- 40.
- 41.
- 42.
Austrian Supreme Court 22.5.2007, 4 Ob 58/07v; 13.11.2007, 4 Ob 174/07b, wbl 2008,148/68 = EvBl 2008, 281 = ÖBl-LS 2008/41, 42, 46, etc.
- 43.
Sec 14a UWG – see above.
- 44.
Sec 15 UWG – see above.
- 45.
Sec 25 UWG – see above.
- 46.
Sec 24 UWG.
- 47.
Compare Sec 1 UWG – see above.
- 48.
Austrian Supreme Court 28.11.2012, 4 Ob 202/12b.
- 49.
Compare Lachmayer, Technokratische Rechtssetzung Privater, juridikum 2013, 109.
- 50.
- 51.
Bundesgesetz vom 29. Juni 1977 zur Verbesserung der Nahversorgung und der Wettbewerbsbedingungen – NahversorgungsG.
- 52.
Bundesgesetz gegen Kartelle und andere Wettbewerbsbeschränkungen (Kartellgesetz 2005 – KartG 2005).
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Mosing, M.W. (2015). Austria. In: Kobel, P., Këllezi, P., Kilpatrick, B. (eds) Antitrust in the Groceries Sector & Liability Issues in Relation to Corporate Social Responsibility. LIDC Contributions on Antitrust Law, Intellectual Property and Unfair Competition. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-45753-5_22
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