Core Elements of Social Justice From the Perspective of the European Unfair Competition Law Prof. Dr. Stefan Koos Universität der Bundeswehr München Structure of the Referate • Introduction and Framework • Evolution of the Unfair Competition Law • Examples of Social Aspects in the Unfair Competition Law • Result Prof. Dr. Stefan Koos | Seite 3 What means„Social“ in Competition Law? Social-institutional Function Private-Individual Function Social Justice Consumer Protection Prof. Dr. Stefan Koos | Seite 2 Environmental Protection From Personality Right to Institutional Protection „The contemporary economy, which makes that the individuum as an individuum is a self-deciding bearer of production and traffic, must be defined through the personality right. After this the economy is in an individualistic way free, but in that way, that the personality must not be touched. Any economyc activity of the one has to keep itself within the limits, that is required by the personality of the other. The Personality of anyone however demands that he is not harmed or suppressed by misleading indecent means.“ Kohler, Der Unlautere Wettbewerb (Berlin 1914), p. 17. Prof. Dr. Stefan Koos | Seite 4 Social Law Understanding of the Civil Law Subjective Right (Fezer) Ethic Foundation of the Private Law (Fezer) Right of the Legal Subject (Legal Entity) - participation - Personal Freedom (Personality) Social Responsibilty Subjective right as instrument to ensure personal freedom within the pluralistic social order (freedom optimising funct.) Location of Unfair Competition Law in the Competition Law System Undistorted Competition Weakening of effective competition through unfair competition behavior Protection of Business Performance Individual Interest effective competition - Institution of Competition Regulation of the monopolistic impacts of protection rights Art. 1 I Draft Law on the protection of Fair Competition: This law is aimed at ensuring fair competition upon compliance with the fair practices and the general principles of good faith, in the interest of those concerned, including the observance of consumers interests. § 1 german UWG: This Act shall serve the purpose of protecting competitors, consumers and other market participants against unfair commercial practices. At the same time, it shall protect the interests of the public in undistorted competition Industrial Property Rights Trademark Law Patent Law Copyright Unfair Competition Law Integrative concept of protection purpose: Competitors Consumers Institution of Competition => Law against unfair competition Restrictions to the competition through agreements, market dominance and mergers -> Protection of Competition Freedom => Antitrust-Law 7 Social Function of Unfair Competition Law Elements • ´Socialization´ of Individual Interests as Instrument of Market Control • Consumer Protection as direct – not indirect - Purpose of the Law • Reduction of Asymmetries of Information between Trader and Consumer Prof. Dr. Stefan Koos | Seite 10 Triade of Protection Purposes Integrative Institutional Concept of Unf.Comp.Law Competitors interests Consumer interests • Freedom of offering products • Chance to realize best performance on the market • Protection of consum. souvereignity • Function of consum. to identify best performance on the market -> differentiate: consumer protection in individual interest (General Civil Law) working competition of performance General interests on avoiding market disturbance 9 Prof. Dr. Stefan Koos Dualism of European Unfair Competition law • • • • protection of concurrents interests protection of consumer souvereignity partially harmonized i.e. comparative advertisement misleading commercial acts B2B protection of industrial interests • fully harmonized (B2B-Directive) • misleading commercial acts (B2C) • aggressive commercial acts (B2C) 10 Prof. Dr. Stefan Koos The European Consumer Information Concept the Right of Product Information Sec 5a II/III UWG- Misleading by omission amount of information to be given by competitor depending on the product and the communication medium used closeness to the contract conclusion Prof. Dr. Stefan Koos 11 European Reference Consumer Sec.3 II UWG: Commercial practices towards consumers shall be illegal in any case where they do not conform to the professional diligence required of the entrepreneur concerned and are suited to tangible impairment of the consumer’s ability to make an information-based decision, thus inducing him to make a transactional decision which he would not otherwise have made. Here reference shall be made to the average consumer or, when the commercial practice is directed towards a particular group of consumers, to the average member of that group. Reference shall be made to the perspective of the average member of a group of consumers who are particularly vulnerable and clearly identifiable because of their mental or physical infirmity, age or credulity, if it is foreseeable for the entrepreneur that his commercial practice will affect the latter group only. Role Model of the reasonably well-informed and reasonably observant and circumspect consumer not of the weak superficious vulnerable consumer 12 Prof. Dr. Stefan Koos Inhuman and Disrespectful Commercial Acts § 4 UWG No. 1: Unfairness shall have occurred in particular where a person uses commercial practices that are suited to impairing the freedom of decision of consumers or other market participants through applying pressure, through conduct showing contempt for humanity, or through other inappropriate, non-objective influence; No. 2: uses commercial practices that are suited to exploitation of a consumers mental or physical infirmity, age, commercial inexperience, credulity or fear, or the position of constraint to which the consumer is subject; Prof. Dr. Stefan Koos | Seite 10 Relevant Informations to Give to the Consumers § 5a UWG Socially Fair Production Aspects and Environmental Relating Aspects to be Revealed to the Consumer? Trader Consumer Interest in effective advertisement Interest in well informed business decision Right not to criticise the own product evaluation Prof. Dr. Stefan Koos | Seite 10 Breach of Law § 4 No. 11 UWG As unfair is considered an commercial act, which... No. 11: infringes a statutory provision that is also intended to regulate market behaviour in the interest of market participants. Prof. Dr. Stefan Koos | Seite 10 Results Prof. Dr. Stefan Koos | Seite 10