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Use of secrets by enticed former employees

24.03.2017

The defendants did not unfairly procure customer data or use this data to recruit the employees of the claimant during their work for the claimant. Thus, there is no unfair restraint of competition in the meaning of § 1 (1) (1) UWG. Until this case decided the Austrian Supreme Court left the question open, whether the enticement of competitors’ employees is unlawful because of the dissemination of objectively incorrect facts or if a subjective element is a necessary element. With the current decision for being unfair to hold the process the Supreme Court clarified the question for the first time: A subjective element is necessary and must be based on special immoral circumstances. The former employee must have gathered business and trade secrets without authorization and with a plan to exploit them after leaving the company for the purpose of competition. [OGH 22.11.2016, 4 Ob 118/16f]

  •  [“UWG” is the Austrian Law on unfair competition]