Competitors acting in conformity with the law may, under certain circumstances, successfully assert claims for injunctive relief or damages under the 1984 Federal Act against Unfair Competition (Bundesgesetz gegen den unlauteren Wettbewerb, UWG) against entrepreneurs violating the measures ordered on the basis of the COVID-19 Measures Act.

On 1 May 2020 and again on 15 June 2020, the Federal Minister for Social Affairs, Health, Care and Consumer Protection relaxed a statutory order (Verordnung) prohibiting the entering of customers sections of business establishments, which was in force since 16 March 2020. Starting from 14 and 21 September 2020, as well as from 25 October 2020, the measures have been tightened up.

Entering the customer area is permitted if a distance of at least one metre is maintained between the customer and persons not living in the same household. Additionally, a mechanical protection device covering the mouth and nose area shall be worn additionally when entering the customer area in closed rooms. This also applies to connected business premises (e.g. shopping centers) and also to outdoor markets.

The operator of the business premises must ensure that he and his employees wear a mechanical protective device covering the mouth and nose area when in contact with customers, unless there is another suitable protective device between the persons to separate them spatially.

If, due to the nature of the service, the minimum distance of one metre cannot be complied with, other suitable protective measures must be taken to minimize the risk of infection.

The limitation of the number of customers depending on the size of the customer area no longer applies as of 30 May 2020.

The prohibition to enter establishments of the restaurant industry has been relaxed but the opening hours have been restricted to 5 am until 1 am and n after the curfew, no alcoholic beverages shall be consumed within a 50 metre radius of the establishments. Additionally, the operator shall take the following precautions:

• The operator shall only admit groups of a maximum of six (outside: 12) adults and a maximum of six minor children of these persons or consisting solely of persons living in the same household;
• food and beverages shall only be consumed while seated (except e.g. at food stalls);
• tables must be arranged so that there is a distance of at least 1 metre between groups of visitors, unless the risk of infection can be minimised by suitable protective measures;
• for premises with more than 50 seats actually available, a COVID-19 officer shall be appointed and a prevention concept drawn up;
•  customers must keep a minimum distance of 1 metre from other visitors and wear mouth and nose protection in closed rooms – except while seated;
• the operator and his staff shall wear a mechanical protective device covering the mouth and nose area when in contact with customers;
• self-service by the customer is permissible if the risk of infection can be minimised by special hygienic precautions.

Effective 29 May 2020, entering accommodation establishments is permitted under the following conditions:

• A distance of at least 1 metre shall be kept from other persons who do not live in the same household or with whom one does not share a room, unless the risk of infection can be minimised by suitable measures for spatial separation;
• overnight stays in a dormitory or in common sleeping quarters is only permissible if a distance of at least 1.5 metre is maintained from persons who do not live in the same household or if the risk of infection can be minimized by suitable protective measures for spatial separation;
• when entering generally accessible areas in closed rooms, a mechanical protection device covering the mouth and nose area shall be worn;
• the operator and his staff shall wear a mechanical protective device covering the mouth and nose area when in contact with customers;
• for entering restaurants, wellness or fitness areas in accommodation establishments, reference is made to the regulations for restaurants, swimming pools or sports facilities.

Who, as the operator of a business establishment, does not comply with the necessary requirements for opening the operating facility, commits an administrative offense (Verwaltungsübertretung) and shall be punished with a fine of up to EUR 30,000.

In addition to administrative offenses, consequences under competition law may also be impending in case of non-compliance as the UWG prohibits unfair business practices and other unfair practices in business transactions. Hence, competitors acting in conformity with the law – but also the Austrian Chamber of Labour (Arbeiterkammer) or the Austrian Federal Economic Chamber (Wirtschaftskammer) -may, under certain circumstances, successfully assert claims for injunctive relief or damages under the UWG. In addition, temporary injunctions granting preliminary legal protection can be obtained by way of summary proceedings.

The infringement of a law or a statutory order may, in accordance with established case law, constitute an anti-competitive infringement as the entrepreneur, by committing this infringement, procures himself an advantage vis-à-vis his competitors who comply with the applicable standards. Additionally, claims for injunctive relief or damages may also be based on other practices such as, for example, a generally malicious and dishonest behaviour, an aggressive business practice or violations of reputable market practices.

An anti-competitive infringement might, for example, exist if employees do not wear a mechanical protective device covering the mouth and nose area when in contact with customers or the restricted opening hours in the restaurant industry are not observed.