When directly approaching a competitor’s customers may be unfair under section 1 UWG and which facts and evidence matter.
, Mag. Bernhard Brandauer, Rechtsanwalt
A competitor approaches your customers directly. This may be commercially significant, but it does not answer the legal question. An assessment under Austrian unfair competition law depends on the specific competitive conduct, existing contracts, the content of the approach, the origin of the information used and the evidence.
The legal context matters. An employee move may engage employment-law non-compete clauses, while a business sale may involve contractual customer-protection duties. A direct approach between competitors instead depends on the specific circumstances and section 1 UWG.
A blanket statement that approaching customers is always lawful or always unlawful would be wrong. The facts should be assessed carefully before injunctive relief, damages or an out-of-court response are considered.
Section 1 UWG provides the general Austrian framework for unfair competition. It covers unfair commercial practices and other unfair conduct capable of materially affecting competition to the detriment of businesses. Whether that threshold is met cannot be inferred from the loss of a customer alone.
Customers may compare offers and reorganise their business relationships. At the same time, the manner of the approach may become legally relevant where additional circumstances arise. The review may include the content of specific statements, the treatment of existing obligations, the method of contact and the basis of the information used. No single point replaces the overall assessment.
The customer’s perspective is also part of the facts. Did the customer seek alternatives independently, receive verifiable information about services or hear that an existing contract could simply be ignored? These differences change the factual basis. They do not, by themselves, determine the legal outcome.
This short review path organises the documentation. After the initial assessment, you can securely send the selected details and your contact information to the firm.
An individual assessment is only possible with the specific documents.
The fact that a customer was approached is not enough on its own. The content, sequence, existing obligations, origin of the information used and available evidence have to be considered together.
Also review whether existing contracts were affected, how the information enabling the approach was obtained and what statements were made to the customer. Only the full context permits an assessment under unfair competition law.
Preserve the specific communication, chronology and affected business relationships. Avoid public accusations while the facts and legal basis remain unverified.
Prepare a chronology and distinguish direct observations from assumptions. Keep messages and contractual documents in their original form. A structured factual basis helps both sides assess the dispute objectively.
A closer review is appropriate where the approach does not resemble ordinary comparison of offers and may involve additional interference. Relevant facts can include specific misleading statements about the competitor, pressure placed on the customer or a deliberate attempt to disrupt a known contractual obligation. The wording, recipient, timing and context of each act matter.
How the contact arose may also be relevant. Public market information, an enquiry initiated by the customer and information obtained internally are different starting points. If non-public information was used, it is also necessary to assess whether trade secrets or contractual confidentiality duties are affected. The origin and use of the information remain a distinct field of review where they enabled the specific approach.
The affected business also needs precision. A fall in revenue alone shows neither causation nor unlawfulness. Which customers were approached, when, and with what message? Which reaction can be evidenced? Was a concrete contractual obligation in place at the time? These questions prevent commercial frustration from being presented prematurely as a proven legal violation.
Keep emails, messages and letters in their original form. For telephone calls, record the date, participants and key statements promptly. A chronology should distinguish direct observations, information provided by the customer and assumptions. Screenshots can help, but they do not always replace the original message and its metadata.
Review the affected contracts as well, without treating them as an automatic solution under unfair competition law. The contractual position can establish whether and which obligation existed. The separate question of whether the competitor acted unfairly under section 1 UWG still depends on the specific competitive conduct.
Public accusations are rarely a sound first response. They can escalate the dispute and create additional risks. Objective evidence preservation instead allows a focused out-of-court enquiry, an assessment of injunctive relief or the conclusion that no further action is appropriate.
Austrian Supreme Court case 4 Ob 118/24t arose from extensive litigation concerning a solicitation campaign. The claim for an injunction concerning customer solicitation had already been dismissed in the first round. The later appeal focused on the required specificity of a declaratory claim for future losses allegedly caused by employee solicitation.
For that type of declaratory claim, the Court required concrete, individualised harmful events. General descriptions of conduct and a long sequence of events that was not precisely attributed were insufficient in that case. This is an important procedural reminder about the quality of the factual basis, not a general holding that customer approaches are always lawful or always unlawful.
For a current customer dispute, the practical point is narrower. The decision should not be detached from its procedural context. Anyone considering claims must identify the relevant events, participants, statements and possible consequences precisely and then assess the appropriate legal basis separately.
No. Nor is it automatically lawful. The specific commercial conduct, its surrounding circumstances, existing obligations, the information basis and the evidence must be considered together under section 1 UWG.
Important materials include the original communication, a prompt chronology, affected contracts and verifiable information from the customer. Direct observations and assumptions should be recorded separately.
No. The loss first shows a commercial change. A legal assessment requires clarification of causation, the specific approach, any additional circumstances and the available evidence.
Document the approach, contractual position, information basis and evidence step by step.
The unfair competition assessment where employees and team moves are involved.
Employment-contract drafting for non-compete and customer-protection obligations involving key staff.
Requirements and review of an employment-law non-compete clause in Austria.
Seller obligations and M&A customer protection following a business transaction.
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