Facts
The present case deals with the question of who is entitled to file a criminal complaint for unfair competition. The Federal Supreme Court had to decide whether, in addition to the directly affected competitors, other persons whose economic interests are violated or endangered are also entitled to file a complaint.
According to Art. 13 of the Unfair Competition Act (UCA), a lawsuit for unfair competition requires a criminal complaint. The competitors who are harmed or endangered in their clientele, credit, professional reputation, business operations or other economic interests by the anti-competitive act are primarily entitled to file a complaint (Art. 2 para. 1 UCA).
The Federal Supreme Court states that the right to sue does not belong to just anyone, but only to the competitors of the accused. Other persons who are outside the economic competition are only entitled to file a complaint if their economic interest is directly harmed by the unfair competition, as may be the case with customers (Art. 2 para. 2 UCA).
Considerations
The Federal Supreme Court justifies its decision by stating that although Art. 2 para. 1 UCA contains a general clause according to which the violation or endangerment of other economic interests also entitles to a lawsuit, this is only intended to protect further interests of the competitor, not the interests of any third parties.
Therefore, only the competitors whose economically protected interests are directly violated or endangered by the anti-competitive act are entitled to file a complaint. This applies in particular to cases where the perpetrator investigates or exploits the manufacturing or business secrets of the competitor (Art. 13 lit. f and g UCA). Only the holder of the secret is directly affected in this case and therefore entitled to…