The Austrian Art Against Unfair Competition provided for a strict ban on incentives in both Business-to-Consumer (B2C) and Business-to-Business (B2B) scenarios. Under Austrian Law it was generally forbidden to offer or grant incentives to consumers or other businesses in connection with the distribution of goods and services. Even an offer to participate in sweepstakes or other games was viewed as an incentive so was prohibited if somehow connected to the distribution of goods and services.
Recently, the Austrian Antitrust Act and the Austrian Competition Act were amended. The goal of the amendments were to increase the efficiency in the execution of antitrust law and to strengthen the Federal Competition Authority according to the guidelines of the European Commission.
In the course of the amendment of the Antitrust and Competition Act, the Austrian Act Against Unfair Competition was also amended and came into force on January 12, 2013. The underlying documentation of the legislator gives transparency as the main reason for the amendment of the Act, in particular to implement the decision Mediaprint vs. Austria into national law. In November 2010, the European Court of Justice (ECJ) ruled in its decision Mediaprint vs. Austria that the Austrian ban on incentives in a B2C context violates the EU-Directive on Unfair Commercial Practices.
Since this decision, the Austrian Courts have interpreted the law in accordance with the EU Directive as they only allowed a ban on incentives in very specific cases (e.g. cases that would be misleading). This means that since the ECJ’s decision in 2010 the ban on incentives was not enforced in a B2C relationship.
However, the EU-Directive on Unfair Commercial Practices is applicable in a B2C context only. The Austrian ban on incentives in a B2B context did not violate the Directive; it remained in force, and was approved by different decisions of the Austrian Supreme Court.
This recent amendment finally abolishes this rule of law. There is no longer a statutory ban on incentives in B2B transactions.