The question of attribution in the case of dishonest solicitation of employees at companies

Pursuant to § 8 ( 2) UWG

Can a company be held liable if his employees attempt to recruit employees of a competitor company with unfair business practices?
This consideration gives rise to the following questions: What conditions must be met for an enticement of employees to be considered unfair, and what are the consequences for the managing director?

In the present case, employees of a competing company had repeatedly tried to poach employees from the competing company. This is not prohibited per se, since the expansion of one’s own employee base and the accompanying promotion of one’s own company is in fact an expression of permissible competition on the market.

However, there is always the danger of exceeding the limits of fair competition by pursuing an unfair purpose of enticement or by using unfair methods of enticement.

1. Concrete competitor relationship of the companies
The starting point for the question of whether there is unfair conduct between companies within the meaning of the UWG always depends on the existence of a concrete competitive relationship pursuant to Section 2 (1) No. 3, No. 6 UWG. This requires a so-called “comparable service profile”, which both companies must have. According to established case law of the Federal Court of Justice (BGH), it can be said that such entrepreneurs are regularly in a concrete competitive relationship who sell goods or services of the same or a related kind. The goods must be so close in nature that they appear to be interchangeable retrospectively and substitutable from the point of view of the customer. An important indication of this is if the traders belong to the same industry. Whether goods or services are to be regarded as interchangeable with each other is to be assessed from the point of view of the targeted public with regard to the characteristics and intended purpose of the goods and services according to a generous standard. The ECJ already allows it to be sufficient that the goods offered show a “certain degree” of substitutability between each other (cf. ECJ GRUR 2007, 511 No. 47). It is already sufficient if the clientele and the offer of the goods or services partly coincide. (BGH GRUR 2007, 1079 no. 22 – Bundesdruckerei; BGH GRUR 1990, 375/377 – Steuersparmodell). In particular, undertakings are in a concrete competitive relationship if they compete with each other as suppliers or customers of similar goods or services for the same customers or suppliers with the consequence that the concretely objected to competitive conduct may affect the other, i.e. hinder or disrupt sales. (established case law; see only BGH, GRUR 2005, 520 [521] = NJW 2005; BGH GRUR 2016, 710 no. 19 – Im Immobiliensumpf; BGH GRUR 2014, 1114 marginal no. 24 – nickelfrei). Moreover, in the case of enticement issues, it should not be necessary that the companies involved compete directly with each other in the enticement by third parties; rather, competition in the demand for labour is sufficient to establish the competitive relationship between the companies involved required under § 4 UWG.

2. Business act
f it is to be clarified whether an employee of a company is alleged to have unfairly solicited, his conduct must constitute a business act within the meaning of Section 2 (1) No. 1 UWG. The conduct must be objectively related to the promotion of sales. Behind the definition of Sec. 2 para. 1 No. 1 UWG is essentially the old definition of competitive act under Sec. 2 para. 1 No. 1 UWG 2004, which covered any act by a person with the aim of promoting sales. Accordingly, any conduct that is objectively related to the promotion of services or the performance of a contract for goods or services is also covered. If, for example, discussions have taken place between a managing director and his employees on how the need for further personnel can be met, for example in order to be able to accept further orders, then depending on what exactly was discussed during these discussions, this may already be sufficient to be able to provide evidence that these discussions were in connection with the promotion of sales. The employees who acted on this and started enticement attempts nevertheless engaged in a commercial act within the meaning of Sec. 2 (1) No. 1 UWG, since these were intended to help their employer promote sales by attracting more qualified personnel to the company.

3. Nnfair enticement
The solicitation of employees is generally not unfair. For a solicitation to be qualified as unfair, there must be a violation of Sections 3 or 7 UWG. In particular, a solicitation is unfair if it has an unfair purpose, such as if it is ostensibly aimed at significantly weakening or displacing the other company on the market, so-called intent to displace, or if unfair means or methods are used. Unfair methods of soliciting employees are, for example, appearing in person at the workplace (BGH 22 November 2007 – I ZR 183/04, NZA 2008, 177 “Direktansprache am Arbeitsplatz III”) or contacting employees by telephone, which goes beyond the narrow limits set by case law, in particular the prior obtaining of the consent of the person contacted. In the case of a dispute, the defendant must prove that such consent was given. A letter sent via chat or private message also constitutes contact by “electronic mail” within the meaning of § 7 (2) No. 3 UWG and is therefore only in conformity with competition law with the prior consent of the contacted party.

4. The liability of an managing director according to § 8 (2) UWG
Now we come to the interesting question of attribution according to § 8 para. 2 UWG, if e.g. the managing director does not act himself, but his employees tried to entice qualified personnel away from the competing company in a targeted – unfair – manner. An employee is anyone who, on the basis of an employment relationship, is obliged to work as an employee (salaried employee, worker, trainee, substitute, intern, etc.) for the company owner in accordance to instructions. The case law links the liability of the business owner to the prerequisite that the conduct has been committed within the business organism and that the person acting (here the employees) is integrated into this organism by virtue of a legal relationship in such a way that, on the one hand, the success of his actions at least also benefits the business owner and, on the other hand, the business owner is granted a certain influence at least on that activity in the area of which the conduct complained of falls, so-called company-relatedness. (BGH, judgement of 5.4.1995, I ZR 133/93, GRUR 1995, 605 – Franchise-Nehmer). An entrepreneur cannot exonerate himself by claiming that he did not know about the infringement or that he disapproved it ( BGH NJOZ 13, 863 Rn 9; BGH GRUR 09, 1167 Rn 21 – Partnerprogramm; OLG Köln MMR 06, 622, 624). According to the Federal Court of Justice, the influence of the managing director does not depend on the influence he has ensured, but on the influence he was able and obliged to assert (see BGHZ 28, 1, 123 – Buchgemeinschaft II). Consequently, a managing director cannot exonerate himself by claiming that he had no knowledge of the attempts to entice of his employees. He could and should have exerted influence to inform his employees, for example, that enticement by unfair methods is inadmissible.

5. Next steps
Should such an infringement be established, the persons concerned are entitled to a so-called cease-and-desist claim pursuant to Section 8 (1) UWG, which can be enforced by way of a warning letter or even by way of a court injunction or action for a cease-and-desist order. Claims for damages pursuant to Section 9 UWG are also conceivable. Prompt action is required here, do not hesitate, because the deadlines for enforcing your rights are short.