When employee poaching turns into targeted obstruction under section 1 UWG and which statements, evidence and circumstances support the fair competition review.
, Mag. Bernhard Brandauer, Rechtsanwalt
When a key employee moves to a competitor or several specialists leave within a short time, the economic impact is real. It is not enough for a legal conclusion. The loss of employees first reflects an open labour market in which employers may compete for qualified staff.
Section 1 UWG provides the general framework. It covers unfair commercial practices and other unfair acts that can affect competition to a non-trivial extent. Under settled case law reflected in the Supreme Court proposition RS0107113, recruiting employees of a competitor is in principle permitted. The conduct becomes unfair only through additional elements such as deception, planned exploitation of a contractual breach or targeted obstruction.
For daily practice this means separating the mere staff change from the additional events. Only the concrete communication, the origin of the information used, the timing of the moves and provable operational effects create a picture that can be tested under fair competition law.
Section 1 UWG addresses unfair commercial practices and other unfair acts in relations between businesses. The loss of an employee is not in itself an infringement, but a typical outcome of free labour market choices. The provision applies where a competitive act gains additional weight through further elements and no longer appears as ordinary competition.
The Supreme Court has captured this starting point in proposition RS0107113. Recruiting a competitor employee is in principle permitted. Only special circumstances such as misleading conduct, planned inducement to breach contractual duties or the targeted obstruction of the competitor may cross the line into unfairness. Without such additional elements, the move remains lawful, even where its economic effect is severe.
For the internal review this means moving beyond the mere resignation situation. Decisive are the concrete outreach, the content of conversations, the information used and the effect on ongoing orders or customer relations. Only that overall picture supports a legal assessment.
Poaching may become unfair in particular where it is connected with targeted obstruction, deception or the planned exploitation of a breach of contract. A business that recruits an employee by incorrect statements about the previous employer, that induces the employee to breach existing duties or that seeks to dismantle an entire structure leaves the zone of lawful staff competition.
The method may also matter. Aggressive interference during working hours, contact through deliberately hidden channels or the use of non-public information about compensation, customer allocation or projects may turn into targeted obstruction. Wording, addressee, timing and actual effect drive the assessment, not the label attached to the process.
A common misconception treats every departure of several employees as automatically unfair. Building a new team in a planned way is also permitted, provided no additional unfair elements are added. The review must therefore show for each individual act which specific conduct is meant to carry the unfairness.
The short review path separates a single departure, a coordinated team exit and a suspicion of targeted influence. You can securely send the selected information to the firm after the assessment.
Parties, sequence, information used and operational impact drive the fair competition review.
This review path does not make a legal determination. It organises parties, sequence and evidence for the initial fair competition assessment.
Preserve the trigger of contact, resignation letters, handover records and how customer lists, pricing files and internal documents were actually treated. Only where additional unfair elements such as deception, pressure or planned use of confidential information appear does a reviewable competition claim arise.
Record the timing of the resignations, communication channels, shared contact persons at the new employer and any coordination. Add operational effects such as cancelled orders, lost customers or stalled projects. Only an individualised chain of specific events supports a claim, not a general suspicion.
Document concrete statements made to affected employees, information about compensation, customers or projects that was used, and the timing next to resignations. Review separately whether trade secrets or contractual confidentiality duties are affected. Avoid public accusations before the factual basis is reliably ordered.
A fair competition review requires facts to be named individually and mapped to a concrete act. Preserve statements from the new employer or departing employees in their exact wording. Record date, channel, participants and context. Screenshots should accompany, not replace, the original message together with its metadata.
The proximity in time between contact, resignation and orders at the new employer may matter for the overall impression. The nature of the communication channels is also important. Were business inboxes, private messengers or encrypted channels used? Was information about customers, terms or projects shared? These points often decide whether only recruitment or additional unfair elements are present.
Operational effect belongs in the file as well. Which orders were cancelled, which customers moved, which projects could no longer be delivered? The customer solicitation review checklist helps where customer relations are affected. It organises outreach, contract situation, information sources and evidence step by step.
When an employee moves, a line must be drawn between general professional knowledge and protected trade secrets. Experience, methodological skills and abilities gained in daily work may be taken along. The situation differs for non-public information of commercial value that is protected by reasonable confidentiality measures.
Trade secrets are governed by their own regime under the Austrian Trade Secrets Act. Its claims and criteria are handled separately from the fair competition assessment under section 1 UWG. One and the same set of facts may touch both levels, but they must be prepared apart. Mixing them leads to unclear objectives and evidence that is hard to run.
In practice this means clarifying which documents the departing employee actually took, which flowed through business devices or cloud accounts and how access was logged. The state of return on the exit day, the behaviour during the handover period and possible copies on private devices belong in the timeline.
Non-compete clauses, customer protection agreements and post-contractual confidentiality obligations govern the relationship between employer and employee. They follow the rules of employment law, including its requirements on validity, scope and duration. A breach of such a clause does not automatically create a fair competition claim against the new employer.
On the other hand, a competitor that deliberately induces a bound employee to breach a valid clause or that knowingly exploits an existing tie may enter unfair territory. The prerequisites include a valid employment law obligation, awareness on the competitor side and sufficiently individualised interference. Mere employment of the person is not enough.
For the file, the non-compete clause, customer protection agreement and confidentiality duty should be documented with wording, date and signature. Communication with the competitor is preserved separately. Anyone weighing claims should consider fair competition and employment law paths in parallel, without merging them.
The decision OGH 4 Ob 118/24t arose from a broad dispute over a poaching campaign. At its core it concerned the specificity of a declaratory claim for future damages arising from alleged employee poaching. The Supreme Court required concrete, individualised harmful events for such a claim and did not accept a generally described, long chain of events.
The context matters. The decision does not lay down a proposition that employee poaching is always permitted or always prohibited. It sharpens the procedural requirements for a declaratory claim. Anyone seeking future damages must identify each event precisely, attributing the employee concerned, the act, the timing and the possible damage path.
For internal file work this means capturing each event separately. Who was approached by whom and when, which statements are on record, which documents were used, which economic effect materialised? For enforcement, the topic on injunctions and interim relief adds the perspective on repetition risk and protective objective, and the topic on damages after competition violations orders the possible loss.
Yes. Under settled case law recruitment as such is permitted. It becomes unfair only through additional circumstances such as deception, planned inducement to breach contractual duties or targeted obstruction. The specific facts of each case remain decisive.
No. Even a coordinated team departure is not automatically unfair. A claim requires individualised events, concrete statements, information used and provable operational effect. Without such a chain, the process remains lawful staff competition.
Preserve statements from the new employer, resignation letters, handover records, business communication, access to customer lists or projects and the timeline. Separate own perceptions from assumptions and attribute each event to a specific person and moment.
When targeted outreach to competitor customers must be reviewed under section 1 UWG and which evidence supports it.
When statements about a competitor touch section 7 UWG and where the limits of factual criticism lie.
Document outreach, contract situation, information sources and evidence step by step.
Assess the claim, evidence, risk of repetition and possible protective objective.
Order the economic loss, causation and evidence after fair competition infringements.
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