Background knowledge

What is

a

Competitor?

Competitor

In competition law, the term “competitor” is central to the assessment of legal issues. But what is a competitor within the meaning of the UWG and who can be a competitor?

A competitor is any entrepreneur who is in a specific competitive relationship with one or more entrepreneurs as a supplier or buyer of goods or services

In order for someone to be classified as a competitor under competition law, a concrete competitive relationship between the parties involved is required.

Concrete competitive relationship

A concrete competitive relationship within the meaning of competition law exists if there is actual competition between two companies on a relevant market, i.e. if both companies offer similar or substitutable products or services that are aimed at the same group of customers. Such a relationship exists if the activities of the companies compete with each other to such an extent that the business interests of one company can be directly or indirectly impaired by the anti-competitive behavior of the other.

Criteria for the concrete competitive relationship

Whether or not a specific competitive relationship exists depends on the specific business act in question. It therefore depends on the specific act and not the company in general. It is therefore also irrelevant whether the parties involved belong to different sectors. Purely secondary commercial activities can also lead to a specific competitive relationship. The following criteria, for example, are used to assess a specific competitive relationship:

Similarity of the services: The goods or services offered must be comparable or substitutable. The perspective of the customer is decisive.
Matching target group: The products or services must be aimed at the same target group.
Relevant market: The competitive relationship must take place in the same geographic, product and time market.
Risk of impairment: A concrete competitive relationship exists if the anti-competitive behavior of one company is likely to impair the business interests of the other.

Examples of competitors

Investment advisors and tax advisorsif an investment advisor uses tax arguments to promote a real estate investment model.
Coffee manufacturer and florist, if the latter advertises with “coffee instead of flowers”
Hotel operator and online travel agency, if the travel agency is linked to a hotel review portal
Licensor and dealer, if the dealer offers products that are covered by the licensor’s property right.

Restrictions on enforcement by the competitor

In principle, competitors can assert claims under competition law. However, the legislator has restricted the group of competitors entitled to assert claims, in that only those competitors who sell or demand goods or services to a not insignificant extent and not just occasionally can now assert competition law claims. According to the explanatory memorandum to the law, this is intended to counteract the pursuit of claims by companies whose business activities are disproportionate to the number of cease and desist letters. With these requirements, black sheep whose main purpose appears to be the assertion of competition law claims should therefore no longer be eligible competitors. Unfortunately, this exception can also affect start-ups and newly founded companies.