Benefits in a competitor’s purchasing process: assess competitive purpose, unfair preference, standing and criminal-law subsidiarity under Section 10 UWG separately.
, Mag. Bernhard Brandauer, Rechtsanwalt
A business discovers indications that a person involved in a competitor’s purchasing process may have received benefits. That suspicion alone does not settle the legal assessment. The review must cover the business context, the purpose of the benefit, the recipient’s role and the preference that was expected.
Section 10 UWG makes offering, promising or granting benefits to employees or agents of a business punishable under defined conditions. Requesting, having a benefit promised or accepting a benefit may also be covered. The provision requires careful analysis because it links the conduct to unfair behaviour in commercial dealings.
Separate unfair competition claims may exist alongside the criminal provision. Businesses should therefore assess criminal liability, injunctions, damages and standing as separate questions. A reliable timeline helps avoid treating an economically unusual purchase as proven bribery before the facts have been secured.
This short path distinguishes an offer, an acceptance and a suspicion without secured evidence. You can then send the selected information to the firm in an organised way.
The benefit, the recipient role, the expected preference and the purchasing process must be assessed from the available documents.
The first review should identify the benefit, the recipient role, the relevant purchase and the preference that was expected.
Preserve the complete message, offer, invitation, discount arrangement and link to the specific purchase. Record who made the offer, who received it and which decision it was intended to influence.
Identify the person’s function, decision-making authority and the specific purchasing process. Preserve evidence of the benefit, internal approvals, supplier contacts and any change in the purchasing decision.
Separate observable facts from assumptions: unusual terms, contacts, timing, decision paths and available documents. Avoid allegations against individuals or competitors until the evidence and competitive purpose have been reviewed.
Section 10(1) UWG covers offering, promising or granting a benefit to an employee or agent of a business. The conduct must serve a competitive purpose and aim to obtain a preference in the purchase of goods or services through unfair behaviour. The provision therefore addresses the person or business using the benefit to influence the process.
Section 10(2) UWG addresses the other side of the transaction. It covers requesting, having a benefit promised or accepting a benefit by an employee or agent where the aim is to secure a preference for another competitor. The person’s actual decision-making authority is therefore an important factual question.
A benefit may be economic or personal. Its legal classification does not follow from the label gift, commission, invitation or price reduction. The key question remains whether the benefit is connected with unfair influence on a specific purchasing decision.
The timing between a benefit and an order may be an indication. It does not establish the benefit or the preference that was expected. The purchasing decision, competing offers, responsibilities and communication between the people involved should therefore be documented separately.
The assessment may differ for a permissible performance incentive. In 4 Ob 252/18i, the Austrian Supreme Court stressed that Section 10 UWG requires unfair behaviour. An ordinary incentive in an existing contractual relationship does not fulfil the provision merely because it is economically attractive. The concrete design and its link to an unfair preference remain decisive.
For businesses, internal policies and the label bonus answer none of these questions on their own. The relevant facts include the return expected, the recipient, the decision path, market comparators and whether the benefit was meant to produce a decision unrelated to objective purchasing criteria.
This overview structures the main questions. It does not replace a review of the specific purchase and the original documents.
| Question What must be established? | Relevance to Section 10 UWG Why does it matter? | Evidence Which document helps? |
|---|---|---|
| Who received or requested the benefit? | The employee or agent role may be decisive. | Function, organisation chart, authority, email signature |
| Which purchasing decision was affected? | The benefit must aim at a preference in purchasing or services. | Order, tender, supplier comparison, approval |
| What return was expected? | The unfair influence must be described concretely. | Messages, meeting notes, terms, payment records |
| How secure is the factual basis? | A market rumour or revenue loss is not a specific proof. | Original files, timestamps, witnesses, coherent timeline |
The legal assessment depends on the full facts. Individual indications must be considered together with the original documents.
The transaction may involve several areas of responsibility. The business offering the benefit, the recipient and the owner of the business involved in the conduct are not automatically treated in the same way. For each person and business, the conduct, knowledge, role and attribution must be established separately.
Section 18 UWG governs the owner’s liability for certain conduct by employees or agents. Attribution for an injunction can extend further than attribution for damages. For damages, it is particularly relevant whether the owner knew or should have known of the conduct with due attention. A business is therefore not liable merely because a person is connected with it; the specific attribution requirements remain relevant.
An internal review should preserve the purchasing process, approvals and controls. Fact-finding, employment measures and potential claims should be coordinated but kept conceptually distinct. Uncoordinated interviews or deleted messages can make later proof more difficult.
Section 13 UWG provides for an injunction and damages within the meaning of Section 16(2) UWG where Section 10 UWG has been violated. An injunction must address the specific unlawful conduct. A general prohibition of all business relationships or benefits would not follow without further analysis.
Standing is governed by Section 14 UWG. Under the statutory conditions, competitors and certain associations or representative bodies may bring claims. A business should therefore explain its position in the relevant market and the concrete impairment it has suffered.
Damages under Section 16 UWG require a separate review of loss, causation and attribution. A lost order can be an important indication, but it does not by itself prove bribery or the amount of recoverable loss. The documents should show the order, the selection process, the economic consequence and alternative causes separately.
Section 10(3) UWG contains a specific subsidiarity rule. The criminal provisions in paragraphs 1 and 2 do not apply where the conduct is punishable under another provision by the same or a stricter penalty. This addresses criminal-law concurrence. It does not automatically remove civil assessments under the UWG.
Two levels should therefore be kept apart. First, the facts must be tested against Section 10 UWG and any other applicable criminal provision. Independently, injunction and damages claims must be assessed under their own requirements. Subsidiarity is not a general statement that an unfair competition dispute has no consequences.
In a report or claim, businesses should avoid presenting a final criminal-law conclusion while the facts remain open. A factual description of the benefit, recipient role, purchasing decision and evidence allows the correct legal classification to follow.
Preserve messages, invoices, invitations, payment records, calendar entries and the complete purchasing file. Versions of offers, approval stages and the people preparing or authorising the decision may also matter. Keep originals unchanged; extracts should retain their context.
An interim injunction may be considered where conduct is continuing or immediately threatened. Section 24 UWG contains a specific rule for securing the injunction claims designated by the UWG. It does not create an automatic order. The requested prohibition, the risk and the evidence must fit together.
The topic page on injunctions and interim relief explains this protective framework. For the economic assessment, the topic page on damages for competition violations addresses loss and causation separately.
Start with a timeline that records the date, source and established fact. Mark assumptions clearly. Add the purchasing decision, competing offers and the people with decision-making authority. This shows which questions the documents can answer and where evidence is still missing.
Do not make allegations to competitors, customers or individual employees without coordination. Legally reviewed communication can preserve the facts and avoid unnecessary follow-on disputes. This remains important even when the commercial impact is already visible.
If the information arose during customer solicitation or a related campaign, that conduct should be assessed separately. The article on customer solicitation by a competitor addresses that framework. Statements about the competitor should also be distinguished from potential disparagement under Section 7 UWG.
No. The assessment depends on the benefit, the competitive purpose, the recipient role and the expected unfair preference in purchasing. Calling it a bonus or discount does not answer those questions.
An unusual order can be an indication. It does not replace a review of the benefit, communications, decision path, competing offers and expected return. Keep established facts and assumptions separate.
Unfair competition claims are assessed independently. Section 13 UWG provides for an injunction and damages for violations of Section 10 UWG. Whether the requirements are met and who has standing under Section 14 UWG depends on the facts.
Paragraphs 1 and 2 of Section 10 UWG step back where another provision imposes the same or a stricter penalty. This concerns criminal-law concurrence. Civil claims must be assessed separately.
Preserve original messages, offers, invitations, invoices, payment records, calendar entries, approvals, competing offers and the decision path. Add a timeline and the names of potential witnesses.
An interim injunction may be relevant where conduct continues or is immediately threatened. Under Section 24 UWG, the protective aim, risk and evidence must fit together. The provision does not create an automatic remedy.
Structure the protective aim, repetition risk and evidence in competition law.
Assess loss, causation and commercial documentation separately.
Assess contact, surrounding facts and evidence as a separate issue.
Review statements and potential Section 7 UWG risks separately.
Topics
Give us a concise outline of the situation. We will clarify which documents are needed and which next step is appropriate.
Office
BRANDAUER Rechtsanwälte GmbH Giselakai 51 5020 Salzburg Österreich
Phone
+43 662 6280000