Case 3 Block 2 Unfair competition i) ELEVATORS FERNANDO HANDICAP SL is a company made up of several brothers-in-law, dedicated to the assembly, installation, repair, maintenance and marketing of elevators and in which, in mid-2015, differences began to arise between Fernando and the rest of the family, who, prior to his departure, began diverting clients for his own benefit, operating under the commercial name of LIFTS DISSABLED; ii) In October 2015, Fernando breach his labor and business relationship with ELEVADORES HANDICAP and during 2016 he was dedicated attract the employees of ELEVATORS FERNANDO HANDICAP SL so that they would go with him to his new company, obtaining 4 in particular those who left in June, July and September 2017 iii) On August 30, 2011, he established the company LIFTS DISSABLED, S.L. of which he is manager; iv) 23 associations of homeowner's clients of ELEVATORS FERNANDO HANDICAP have terminated the maintenance contracts for wheelchairs for the disabled. Interestingly, as an employee and manager of ELEVATORS FERNANDO HANDICAP, Fernando had access to all kinds of information. v) Offers a price well below the normal market price; vi) The company LIFTS DISSABLED SL uses advertising photographs owned by ELEVATORS FERNANDO HANDICAP SL; vii) Certain computer files of ELEVADORES HANDICAP SL have been missing. Describe what infractions are manifested in the case indicated above Describe the possible Unfair Legal Actions to be exercised by ELEVATORS FERNANDO HANDICAP S.L. Vs others implied in this case Delimit From this perspective, the different types of imputed unfair conduct must be analyzed. intermingle As is unfortunately usual in forensic practice in which the parties do not precisely define the factual elements of their legal qualification and that in this class of matters becomes transcendental General provision 1º) The Unfair Comp. La law establishes a series of types of illicit competition, of strict interpretation. In its illustrative Preamble it warns that "According to the purpose of the Law, which is ultimately based on the maintenance of highly transparent and competitive markets, the drafting of the precepts... has been governed by the permanent concern of avoiding inconvenient competitive practices for competitors be qualified, simply because of this, as unfair. In this sense, attempts have been made to make very restrictive typifications, which on some occasions, rather than aiming to incriminate a certain practice, tend to liberalize it or at least settle possible doubts about its validity. his disloyalty." Therefore, the party imputing such an infraction must frame the conduct in one of its types and prove that each and every one of the requirements that each one of the types requires is met, in a manner analogous to what occurs in a criminal proceeding. As some commentator on the Law (Massaguer) says, it acts as a self-regulating valve for the system, which especially allows extravagant behaviors at the currently established rates to be subject to competition disloyalty control without the need to wait for a legal modification, but that the application of the general clause is not appropriate in cases in which the conduct to be prosecuted fits in all its aspects in any of the acts that have merited their own type. And this is the opinion of the prevailing jurisprudence, among others, the sentence of the AP of Barcelona of January 26, 2000 (AC 2000, 688) a) acts of confusion art 6) Nothing is said about what the confusing action consisted of, since when article 6 prohibits confusion with the activities, services or establishment of others, it refers to the confusion between signs, whether they are typical signs or atypical signs. Article 6. Acts of confusion. Any behavior that is suitable for creating confusion with the activity, benefits or establishment of others is considered unfair. The risk of association by consumers with respect to the origin of the provision is sufficient to substantiate the disloyalty of a practice. b) acts of deception art. 5 In this type, the disloyalty resides in the error that causes or may cause in the consumer the falsity or inaccuracy of the indications on certain aspects of the provision and tries to protect the consumer at the time of making his decision in the market, specifically , so that it is free and conscious, which corresponds to whoever has to be an arbitrator in a transparent system of free competition (SAP of Barcelona, of May 4, 2005 [AC 2005, 1124]). This deception does not occur here, since it is not even specified what those practices of the defendant are that cause this error in consumers. The one that in the opinion of the LIFT DISSABLED with the prices offered by ELEVATORS FERNANDO HANDICAP SL cannot guarantee the services to which it is committed does not fit into this type. This will affect the fulfillment of benefits but the consumer is not deceived when arranging maintenance services Article 5. Acts of deception. 1. Any conduct that contains false information or information that, even though it is true, due to its content or presentation, misleads or may mislead the recipients, being likely to alter their economic behavior, is considered unfair as misleading, provided that it affects any of the the following aspects:……. c) acts of denigration art. 9 Nor is the ELEVATOR´S allegation of this rule understood when the statement made by LIFT DISSABLED is not specified or identified; "about the activity, benefits, establishment or commercial relations" of the plaintiff "that are suitable to undermine her credit in the market", which makes it impossible to ask whether "they are exact, true and relevant". Article 9. Acts of denigration. It is considered unfair to make or disseminate statements about the activity, benefits, establishment or commercial relations of a third party that are capable of undermining its credit in the market, unless they are exact, true and relevant. In particular, statements that have as their object the nationality, beliefs or ideology, private life or any other strictly personal circumstances of the affected party are not considered relevant. d) Acts of exploitation of the reputation of others, art. 12 No section of specifies how the defendant LIFT DISSABLED SL has taken advantage of the industrial, commercial or professional prestige or reputation of the plaintiff, which is not proven, which in itself prevents the estimation of this type, nor what advantages derived from that presumed reputation the ELEVATOR´S had and that they specify that are usurped by the defendant LIFT DISSABLED SL so that the precept comes into play and applies Article 12. Exploitation of the reputation of others. It is considered unfair to take undue advantage, for one's own benefit or that of others, of the advantages of the industrial, commercial or professional reputation acquired by another in the market. In particular, the use of alien distinctive signs or false appellations of origin accompanied by an indication of the true origin of the product or expressions such as "models", "system", "type", "class" and Similar. e) Acts of violation of secrets provided for in art. 13 Law 1/2019, of February 20, on Business Secrets 1, any information or knowledge, including technological, scientific, industrial, commercial, organizational or financial, that meets the following conditions is considered a business secret: a) Being secret, in the sense that, as a whole or in the precise configuration and meeting of its components, it is not generally known by people belonging to the circles in which the type of information or knowledge in question is normally used, nor easily accessible to them; b) have a business value, whether real or potential, precisely because it is secret, and c) have been subject to reasonable measures by its owner to keep it secret. 2. Protection is granted to the owner of a business secret, which is any natural or legal person who legitimately exercises control over it. f) Acts of discrimination art. 16 It is not possible to understand the invocation since it does not describe in the text any act of the LIFT DISSABLED that supposes a "discriminatory treatment of the consumer in terms of prices and other conditions of sale". Article 16. Discrimination and economic dependence. 1. The discriminatory treatment of the consumer in terms of prices and other conditions of sale will be considered unfair, unless there is just cause. 2. The exploitation by a company of the situation of economic dependence in which its client companies or suppliers may find themselves that do not have an equivalent alternative for the exercise of their activity is considered unfair. This situation will be presumed when a supplier, in addition to the usual discounts or conditions, must regularly grant its client other additional advantages that are not granted to similar buyers. 3. It will also be considered unfair: a) The break, even partially, of an established commercial relationship without prior written and precise notice given at least six months in advance, unless it is due to serious breaches of the agreed conditions or in case of force majeure. b) Obtaining, under the threat of breaking off commercial relations, prices, payment conditions, sales methods, payment of additional charges and other commercial cooperation conditions not included in the agreed supply contract. Sale at a loss If what you want to denounce is that the prices offered to consumers are low cost prices, you must take into account that the applicable precept is art. 17 UNFEIR C. law (Sale at a loss) and that is based on the principle that unless otherwise provided by laws or regulations, pricing is free, in accordance with a free market system (art. 38 CE [ RCL 1978, 2836 ] ), without stating that the provision of the services is carried out at low cost, or at a low acquisition price, and that any of the cases of art. 17.2 to be considered disloyal (a) is likely to mislead consumers about the price level of other products or services in the same establishment; b) have the effect of discrediting the image of a foreign product or establishment and c) is part of a strategy aimed at eliminating a competitor or group of competitors acts of inducement to breach of contract. Article 14 1. Inducing workers, suppliers, customers and other obligated parties to violate the basic contractual duties they have contracted with competitors is considered unfair. 2. The induction to the regular termination of a contract or the use for one's own benefit or that of a third party of an alien contractual infringement will only be considered unfair when, being known, its purpose is the dissemination or exploitation of an industrial or business secret or goes accompanied by circumstances such as deception, the intention to eliminate a competitor from the market or the like". i) the text does not state what would be the basic contractual duties of the workers that would have been violated by inducement of any of the defendants, since there is no rule that obliges a worker to remain in a company, as there is no claim or prove that there was a permanence agreement in accordance with the provisions of art. 21.4 of the Workers' Statute ( RCL 1995, 997) and ii) it must be taken into account that the possibility of changing jobs, or of leaving a job to set up a company, and of taking advantage of the baggage of experience and professional knowledge acquired in the previous job in the new job is a right of the worker with constitutional anchorage in art. 35.1 of the Constitution ( RCL 1978, 2836) ((right to free choice of profession or trade and promotion through work) and in article 38 of the Constitution (freedom of business) and that the competition of companies / employers for recruiting workers, offering them better working conditions, is part of the free market game and the possibility of promoting workers through employment, with the constitutional anchor mentioned above. Therefore, unless there is any of the negative characteristics provided for in the Unfair Competition Law ( RCL 1991, 71) (deception, disclosure of secrets, intention to eliminate a competitor from the market) or there is a violation of a basic contractual duty ( therefore, the infringement of any contractual duty is not enough), the "signing" of workers of one company by another cannot be considered unfair but, on the contrary, typical of the rules of operation of the market in a social State of Law . In this sense, SJM of Seville of 7/28/2005 (AC 2005, 1238) citing the SAP of Seville, of October 15, 2003 (AC 2003, 1827). In short, the Law does not prohibit a worker from improving their working conditions by resorting to the market and competition between companies, since they have the right to carry out their activity outside the company for which they previously worked, without being obliged to dispense with the experience and acquired knowledge, of which you can make use provided that you comply with the guidelines of good faith and refrain from carrying out actions constituting unfair competition; actions that are not accredited here that the workers (only three) have carried out It can be affirmed that there has been this induction, understood as an action aimed at bringing about in another (in this case the neighborhood communities that had maintenance contracts with the ELEVATORS) the resolution of certain contractual ties ahead of time. Now, that's not enough. Sharing the considerations contained in the SAP of Barcelona of 10/26/2005 (AC 2005, 365), it should be noted that in a system that prioritizes free competition, that enhances the struggle for clientele and factors of production and that does not build illicit on simple criteria of professional correctness, but of economic efficiency (the destruction of external contractual relationships is tolerated if justified by the greater efficiency of own benefits), disloyalty is not determined by the simple offer to hire, by the mere contact with the workers and clients of the competitor or by attracting one and the other. The rule is that it is not illegal to seek the destruction of external contractual relationships (moreover, it is consubstantial to the competition system itself and to the introduction of a new agent in the market) so that the destruction of external contractual relationships is only unfair if: a) has the purpose of disseminating or exploiting an industrial or business secret or b) is accompanied by circumstances such as deception, the intention to eliminate a competitor from the market or the like. The adverb "only" highlights that we are faced with the exception to the general rule, and therefore of strict interpretation.
