What can I resell in grocery stores

When some are allowed to sell and the others are not

Part of the government's package of measures to contain Covid-19 is an ordinance with which, in addition to services, stationary retail is temporarily prohibited (Federal Law Gazette II No. 96/2020). More precisely, "entering the customer area of ​​retail establishments ... for the purpose of purchasing goods" is forbidden.

However, there are exceptions for the food trade, drugstores, the sale of medical products, animal feed, for petrol stations, etc. The Covid-19 Measures Act on which the regulation is based only provides relatively small fines as sanctions for violations of the entry ban.

The purpose of the exceptions is to ensure basic services for the population. But since almost no one in modern brick-and-mortar retail sells pure assortments, the offers often overlap. Sports shops sell casual clothing, building materials dealers sell toys, furniture stores and large grocery stores carry almost everything.

This is good for consumers, but it is currently leading to massive distortions of competition: supermarkets benefit from the fact that they are allowed to sell goods that others are prohibited from doing. Anger is already rising, for example from florists about the sale of cut flowers in supermarkets, or from the textile trade. If bicycles appear in open markets in a few weeks, then the sports trade would probably go on the barricades.

Current legal situation

This is where the Act against Unfair Competition (UWG) comes into play: Above all, it prohibits violations of "unfair business practices" and "other unfair acts" that are committed in business dealings. Some of these are specified in the law itself or in appendices. The legal consequences are injunctive relief according to § 1 Abs 1 UWG and claims for damages in case of negligence.

In addition, the law provides for the possibility of obtaining temporary injunctions, which grant temporary legal protection, quickly and under simplified conditions. In addition to competitors, so-called official parties such as the Chamber of Labor or the Chamber of Commerce are also entitled to bring an action before the courts.

Relevant for the current situation is, among other things, the fact that a violation of the law, e.g. a violation of the Closing Ordinance, can, but does not have to be, a UWG violation. According to the judicature of the Supreme Court, this is only the case if the act is based on an interpretation of the law that cannot be justified with good reason.

A legal view is particularly unacceptable if it contradicts the clear wording of the law or the obvious intention of the legislator or legislator. Circumventing the law is also not permitted. On the other hand, it is justifiable to rely on information from the authorities or on official practice.

Legal uncertainty

The current situation is fraught with legal uncertainty. If one proceeds from the pure wording of the Closure Ordinance, one could even claim that there is only a representation, but no sales ban (keyword street sales). That is not what the legislator meant, however. Assuming an at least partial sales ban, one can roughly distinguish between the following groups:

  • Goods that have nothing to do with the purpose of the ordinance - health protection and basic services - are currently not allowed to be sold, regardless of where, even if they are part of the usual supply. These include barbecues, garden furniture, or TV sets.
  • Goods that have to do with one of the exceptions - e.g. B. pet food or magazines - you will be allowed to sell anywhere, in the grocery store, in the drugstore and at the gas station.
  • Blatant bypasses are not permitted. These include B. hairdressers or fitness trainers in open retail establishments.
  • Even massive changes to the offer within the scope of ranges that are permitted in themselves could then be assessed as a forbidden circumvention if there is no acute need for them.
  • In case of doubt, one can assume a justifiable legal opinion.

It remains to be seen whether these principles apply equally to all open trading companies or whether a further distinction does not have to be made between system-maintaining chains and others - for example for logistical reasons in order to maintain social peace, etc.

The sale of stocks or a range of offers that is within the scope of the previous and does not aggressively exploit the existing improvement could also be permissible.

Binding information

What can be done to keep the distortion of competition low, to increase legal certainty and to save the courts unnecessary work? Since no clarifications were made on the occasion of the extension of the Closing Ordinance until April 13th, the Ministry of Health should at least set up one office that provides authentic and documented binding information in the event of inquiries so that the entrepreneurs concerned can invoke a justifiable legal opinion in the sense of the case law.

It would be useful to publish such information promptly in order to create an exculpatory administrative practice as quickly as possible. Austria would be a pioneer internationally. (Markus Kajaba, March 25, 2020)

Markus Kajaba is a lawyer and partner at Fellner Wratzfeld & Partner.

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