OGH: Consumers can sue for damages under the UWG
The Austrian Supreme Court (Oberster Gerichtshof, OGH) sticks to its point of view: Consumers have the right to sue for damages resulting from unfair business practices of an entrepreneur. It thus confirmed its legal view, which it took for the first (and so far also the only time) in a ruling from the 1990s.
In the original case, the plaintiffs bought a safe from a specialised dealer, which was manufactured by the defendant company. In order to comply with the conditions of their household insurance, it was particularly important to them that the safe had the security class EN-1. Only in this case would the sum insured amount to EUR 60,000. According to the description on the defendant's website, the safe met security class EN-1, which is why the plaintiffs bought it from the specialist dealer. The company no longer existed at the time of the lawsuit. After the plaintiffs' home was broken into, the insurance company denied coverage. An expert came to the conclusion that the safe did not comply with EN-1. The application with EN-1 had therefore been made wrongly.
The plaintiffs claimed damages because the defendant's conduct was a misleading commercial practice (Section 2 Law against Unfair Competition (Gesetz gegen unlauteren Wettbewerb, UWG). The damage was caused by placing the safe on the market with incorrect information. If the safe had actually had that security class, the insurance would have paid.
The lower courts dismissed the claim for lack of legal legitimation of the plaintiffs - wrongly, as the OGH clarified.
In essence, the OGH justified this by stating that there must be harmony between antitrust law and principles of fair competition. The European Court of Justice has granted injured parties an individual right to sue for damages under antitrust law. This must therefore also apply to the principles of fair competition, because it is also about the protection of consumers.
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