COVID-19 UPDATE: aspects related to competition law
Attorney at Law
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.
The Federal Minister for Social Affairs, Health, Care and Consumer Protection has issued certain prerequisites for entering the customers sections of business establishments with a statutory order (Verordnung).
Entering the customer area is permitted if a distance of at least two meteres is maintained between the customer and persons not living in the same household. Additionally, an FFP2-mask or an equivalent mask shall be worn In addition, it must be ensured that a maximum number of customers are present in the customer area at the same time, so that 20 sqm are available per customer.
In service establishments, one client per 20 sqm is allowed. In order to receive services close to the body, customers may only enter an establishment with a negative COVID-19 test result that is not older than 48 hours (antigen-test) or 72 hours (PCR-test). If, due to the nature of the service, the minimum distance of two metres and/or the requirement to wear an FFP2-mask cannot be maintained, other appropriate protective measures must be taken to minimise the risk of infection.
In the case of shopping centres, the areas of the customer areas of the business premises are added together without taking into account the connecting structure; a maximum number of customers may be present simultaneously in the customer areas of the respective business premises, so that 20 sqm are available per customer (or 10 sqm in the case of service establishments). Customers may only enter the connecting structure for the purpose of passing through to the customer areas of the establishments and the consumption of food and beverages is prohibited. The operator of the shopping centre shall develop and implement a COVID-19 prevention concept to minimise the risk of infection.
Workers in warehouse logistics who cannot regularly maintain the minimum distance of two metres and workers with direct customer contact need a negative COVID-19 test result every seven days to enter the workplace or must wear an FFP2-mask.
The opening hours of business are restricted to 6:00 am to 7:00 pm.
It is prohibited to enter premises of all types of establishments of the restaurant industry, unless they are operated within a hospital, sanatorium or nursing home, a retirement home or similar institutions. Accommodation establishments are exempt if food and beverages are served exclusively to accommodation guests. The collection of pre-ordered food is permitted between 6:00 am and 7:00 pm, provided it is not consumed within 50 metres of the premises. The following applies to all exceptions:
- A distance of two metres shall be maintained between persons not living in the same household and an FFP2-mask or equivalent mask shall be worn;
- food and beverages shall only be consumed while seated and not in the immediate vicinity of the bar;
- tables must be arranged so that there is a distance of at least two metres between groups of visitors, unless the risk of infection can be minimised by suitable protective measures;
- self-service by the customer is permissible if the risk of infection can be minimised by special hygienic precautions.
There are different regulations for certain federal states. In the state of Vorarlberg, premises of the restaurant industry may be entered with a negative COVID-19 test result that is not older than 48 hours (antigen test) or 72 hours (PCR test). In the states of Burgenland, Lower Austria and Vienna, on the other hand, entering the customer area of business premises and of service providers for certain services is prohibited. There are exceptions for the collection of pre-ordered goods and to cover the necessities of daily life (grocery stores, pharmacies, etc.).
Entering accommodation establishments is prohibited. This does not apply to the accommodation
- of persons already in accommodation at the time of entry into force of this provision, but only for the duration of accommodation agreed in advance with the accommodation establishment;
- for the purpose of care and assistance to persons in need;
- for professional reasons, which cannot be postponed;
- for educational purposes of legally recognised institutions;
- to meet an urgent housing need;
- of spa guests and patients including their accompanying persons in a health resort or rehabilitation facility; or
- of pupils for the purpose of attending school (boarding schools, etc.).
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 an operator of an establishment does not ensure that only the permitted number of customers in relation to the total sales area is admitted or that employees do not wear FFP2 masks when in contact with customers.
Attorney at Law