Autor

National Report: Austrian Competition law

publiziert: 
e-Competitions Bulletin, 2008
Datum: 
1. Januar 2008
NATIONAL REPORT: AUSTRIA


1. Institutions

1. Which are the institutions responsible for the enforcement of competition policy?

There are three institutions responsible for the enforcement of competition policy:

a) The Upper Regional Court as Cartel Court (Oberlandesgericht Wien als Kartellgericht)
Schmerlingplatz 11, 1016 Wien
Austria
Phone: +43 1 52152-0

b) Federal Competition Authority (Bundeswettbewerbsbehörde)
Praterstraße 31, 1020 Vienna
Austria
Phone: +43 1 24508-0
Web: www.bwb.gv.at

c) Federal Cartel Attorney (Bundeskartellanwalt)
Schmerlingplatz 11, 1016 Wien
Austria
Phone: +43 1 52152-0

2. What is the role of each institution?

a) Cartel Court
The Cartel Court has exclusive jurisdiction to decide whether a certain agreement or behaviour violates competition law. The parties in a proceeding before the Cartel Court may appeal against its decision before the Upper Cartel Court – Kartellobergericht.

b) Federal Competition Authority
The Federal Competition Authority ("FCA") has the following main tasks:

• As one of the two official parties (Amtsparteien) the FCA is party in proceedings before the Cartel Court and the Upper Cartel Court, even if it was not the applicant in this proceeding (sec 2 para 1 no 1 Federal Competition Authority Act ("FCAA") in conjunction with sec 40 Austrian Cartel Act ("ACA")).
• Implementation of community competition rules in Austria
• Conducting of general sector inquiries
• Administrative assistance of the Cartel Court, the Upper Cartel Court, as well as other courts and administrative authorities including the regulators and the federal cartel attorney in competition matters
• Delivery of opinions on general questions of economic policy.

The FCA may conduct investigations, request information, consult experts, witnesses and parties and may conduct all necessary inspections of undertakings and associations of undertakings, if required in cooperation with the European Commission.

If the FCA decides in a leniency case to abstain from applying for a fine or to apply only for a lower fine, the Federal Cartel Attorney is barred from applying for a (higher) fine.

c) Federal Cartel Attorney
The Federal Cartel Attorney is entrusted with the "representation of the public interests in competition matters" (sec 75 ACA) and is the other one of the two official parties. The Federal Cartel Attorney is party in proceedings before the Cartel Court and the Upper Cartel Court, even if he/she was not the applicant in this proceeding. Moreover, the Federal Cartel Attorney may appeal against all decisions of the Cartel Court.

3. Is there concurrent jurisdiction with sectoral regulators? Which sectors are these?

In most cases there is no concurrent jurisdiction of the competition authorities with sectoral regulators. The regulators cooperate with the competition authorities peculiarly in connection with sector inquiries. Please also note the competence of the telecoms regulator RTR to regulate competition in the telecom sectors ex ante.

4. What is the process of decision making in a typical case?

The Cartel Court renders its decisions only upon application of a party (sec 36 para 1 ACA). In anti-trust cases the official parties (FCA and Federal Cartel Attorney), the regulators, certain lobby groups (the Chamber of Commerce Austria, the Federal Chamber for Workers and Employees and the presidence´ conference of the Austrian Chamber of Agriculture) and every undertaking or association of undertakings, which has a legal or economic interest in the decision are entitled to apply for a decision of the Cartel Court. In merger control matters and the promulgation of fines only the two official parties have the right to call upon the Cartel Court (sec 36 para 2 ACA).

5. Are there any recent/forthcoming changes with the institutions?

Until recently, it was planned to abolish the position of the Federal Cartel Attorney and to increase the funds of the FCA instead. However, these plans have not been realised and are, for the moment, not on the political agenda any more.


2. Anticompetitive practices

2.1. Legislation

1. What is the relevant legislation dealing with anticompetitive practices? What is the main wording?

The Austrian Cartel Act 2005, which entered into force on 1 January 2006, implemented regulation No 1/2003 in the Austrian legal system. As a consequence, the legislation dealing with anti-competitive practices (sec 1 and 2 of the ACA) has a wording which is mainly identical to Art 81 EC. However, in some areas, Austrian law is more specific than EC law.

2. Which types of infringements are considered to be per se, if any? Please provide examples of case law (with ref.), if possible, e-Competitions case law.

The types of per se infringements are the same as under EC competition law (see Upper Cartel Court - OGH 16 Ok 51/05).

3. Is there any “Guidelines”/“Notices” specific to anticompetitive practices?

There are no such guidelines or notices. However, there is a manual on leniency (Leniency-Handbuch), which can be downloaded from the following link:
http://www.bwb.gv.at/BWB/Service/Kronzeugenregelung/default.htm

There is also a form of the FCA, which needs to be filled in when filing a complaint with the FCA:
http://www.bwb.gv.at/ BWB/Service/Formblaetter/fbb010106.htm

4. To what extent the legislation covers public undertakings?

The legislation also covers public undertakings. However, in some sectors there are constitutional provisions requiring the republic of Austria, or a province (Bundesland) to hold a certain minimum participation in some public undertakings.

5. Are there any recent/forthcoming changes to the anticompetitive practices legislation?

No.

2.2. De Minimis - Exemptions

6. Is there a de minimis provision? What are the thresholds? Does it apply to certain markets? What are the relevant provisions?

Undertakings participating in anti-competitive practices covering a market share of not more than 5% on the whole domestic market and a market share of not more than 25% on any domestic geographic market segments (Bagatellkartelle) will be exempted from the prohibition of anti-competitive practices (sec 2 subsec 1 no 1 ACA). Please also refer to appendix 1 which contains the whole wording of this provision.

7. Are there sectoral exemptions or specificities [outside EC law]? What are the relevant provisions?

Sec 2 subsec 2 ACA provides for an exemption from the prohibition of anti-competitive practices for agreements on resale price maintenance on books, art print, music supplies, magazines and newspapers. Additionally, the prohibition of anti-competitive practices shall also not be applied on restraints on competition between corporative societies and its members as well on restraints between members of a credit institution group. A further sectoral exemption concerns agreements, decisions and coordinated conduct of companies in the agricultural production sector as long as this coordination does not entail resale price maintenance or an impediment in competition.

8. Are there block exemptions? Is there a system for individual exemption? What are the relevant provisions?

So far, the competent body (the Austrian Ministry of Justice) has not passed a block exemption based on the new ACA. However, community law block exemptions serve as the main yardstick for the assessment of whether agreements may benefit from an exemption pursuant to sec 2 para 1 ACA. Individual exemptions are possible subject to more or less the same conditions as under EC law. The ACA requires parties to an agreement or an anti-competitive practice that they assess the feasibility of this agreement/practice themselves and behave accordingly.

9. What are the criteria for granting an exemption? What is the trend? What are the relevant provisions? Please provide examples of case law (with ref.), if possible, e-Competitions case law.

As already mentioned, the relevant provision containing the criteria for granting an exemption is sec 2 subsec 1 ACA, the wording of which is almost identical with Art 81 para 3 EC. The four criteria are (i) the contribution to improving the production or distribution of goods or to promoting technical or economic progress, (ii) a fair share for consumers of the resulting benefit, (iii) the non-imposition on the undertakings concerned of restrictions which are not indispensable to the attainment of these objectives, and (iv) the agreement shall not enable the undertakings concerned to eliminate competition in respect of a substantial part of the products in question.

10. Who carries the burden of proof for an exemption to be granted?

The undertaking invoking the exemption provision bears the burden of proof.

11. Which body if any supervises compliance with an exemption? What are the relevant provisions?

Since the ACA is based on the principle of self-assessment, the non-compliance with any of the exemption criteria will be tackled either by one of the official parties or by a competing undertaking and would be treated as a stand-alone infringement of the prohibition of anti-competitive practices.


3. Unilateral practices

3.1. Legislation

1. What is the relevant legislation dealing with conducts of dominant firms? What is the exact wording? [Please provide a copy of the relevant texts or a link]

Legislation on the abuse of a dominant position is to be found in secs 4 to 6 ACA. Please refer to Appendix 1 for the wording of the respective provisions.

2. Which types of infringements are considered to be per se, if any? Please provide examples of case law (with ref.), if possible, e-Competitions case law.

Sec 5 ACA contains five different behavioural patterns which may qualify as abusive behaviour. These patterns comprise (i) price discrimination, (ii) output limitations, (iii) the application of dissimilar and thereby discriminative conditions to equivalent transactions with other trading parties, (iv) tying and (v) predatory pricing.

3. Is there any “Guidelines”/“Notices” specific to unilateral practices? [Please provide a copy of the relevant texts or a link]

No guidelines/notices specifically deal with unilateral practices.

4. To what extent the legislation covers public undertakings? Please provide examples of case law (with ref.), if possible, e-Competitions case law.

The prohibition set out in sec 5 ACA also covers public undertakings as long as they do not carry out sovereign tasks.

5. Are there any recent/forthcoming changes to the unilateral practices legislation?

No.

6. What is the objective of the legislation? Is it consumer welfare or total welfare?

The main legislative objective is consumer welfare.




3.2. Dominance

7. What is the definition of dominance? Please provide examples of case law (with ref.), if possible, e-Competitions case law.

An undertaking is characterized as dominant if (i) it is exposed to no or insignificant competition or (ii) if it holds an outstanding market position compared to other competitors considering the financial background of the undertaking, the connections to other undertakings and the access to purchase and sales markets (see for example OGH 1 Ob 240/03f; see also Hanns Peter Nehl, The Austrian competition authority concludes general inquiry in the highly concentrated food distribution sector while highlighting indications of strong buyer power (Branchenuntersuchung Lebensmittelhandel), e-Competitions, August 2007-I).

8. What is the definition of collective dominance? Does the definition exist in the legislation?

There is no definition of collective dominance in the ACA.

9. Has a market share threshold been defined in legislation or case law, which determines whether an undertaking is dominant?

The legal assumption laid down in sec 4 subsec 2 ACA provides that an undertaking bears the burden of proof to show that it is not dominant on the relevant market if (i) it has a market share of above 30%, or (ii) has a market share of more than 5% provided that it is exposed to competition of not more than two other competitors or has a market share of more than 5% and belongs to the four biggest undertakings on the relevant market which have a joint market share of at least 80%.

10. Does legislation apply to conducts of non-dominant firms which are nearly as powerful as the dominant firm in the market? Does the case law cover such conducts?

Pursuant to sec 4 subsec 3 ACA an undertaking is considered to be dominant, if it holds an outstanding market position in relation to its customers or suppliers. If the undertaking is not dominant in that sense, the prohibition to abuse a dominant market position may not apply to this undertaking.

3.3. Abuse

11. Is there causality between the creation of dominant position and its abuse?

Causality is not required between the creation of a dominant position and its abuse (see OGH 16 Ok 11/03).

12. What is the definition of abuse of a dominant position? Please provide examples of case law (with ref.), if possible, e-Competitions case law.

The definition of abuse of a dominant position is concretized by sec 5 ACA by a non-exhaustive list (see above, answer to question 2). This definition of abuse mainly follows the concept found in Art 82 EC. As a general rule, the case-law defines abusive behaviour as the weakening or impediment of competition on the market by means that are alien to normal competitive behaviour (see OGH 16 Ok 43/05).

13. Does the legislation/case law cover attempts of law firms to become dominant?

The provisions in question are flexible enough to be applied to law firms as well.

14. Do economics play an important role in the assessment of conducts of dominant firms?

The expertise of the economists appointed by the Cartel Court do often play a significant role in court proceedings.

15. Are exploitative abuses captured? Please provide examples of case law (with ref.), if possible, e-Competitions case law.

Exploitative abuses are captured by secs 4, 5 ACA (see OGH 14 Okt 3/93).

16. Are exclusionary abuses captured? Please provide examples of case law (with ref.), if possible, e-Competitions case law.

Exclusionary abuses are captured by secs 4, 5 ACA, too (see OGH 16 Ok 3/01).

17. What is the most frequent type of abuse that the authorities investigate? What is the least frequent? Please provide examples of case law (with ref.), if possible, e-Competitions case law.

The most frequent type of abuse is price discrimination, refusal to supply and tying. The least frequent type of abusive behaviour probably is predatory pricing due to difficulties on the standard of proof concerning the alleged infringement.

18. In which sectors are abuse of dominance cases more likely? Please provide examples of case law (with ref.), if possible, e-Competitions case law.

Cases of abusive behaviour seem to be likely in the newspaper sector and the telecommunications and postal services sector (see OGH 16 Ok 4/00, 16 Ok 11/04).

3.4. Justifications

19. What justifications, if any, for an abuse of dominant position are acceptable?

If an undertaking is suspected of abusing its dominant position, any attempt to justify the behaviour of the undertaking in question must point out economically reasonable explanations for this behaviour.

4. Mergers

4.1. Legislation and institutions

1. What is the substantive test for mergers? What are the relevant provisions? [Please provide links towards the relevant provisions]

Pursuant to sec 12 subsec 1 number 2 ACA a concentration of undertakings shall be prohibited when it can be foreseen that through the concentration a dominant market position will be created or strengthened.

2. What types of mergers does the legislation cover? What are the relevant provisions? [Please provide links towards the relevant provisions]

Sec 7 ACA covers a wide range of mergers, such as the acquisition of an undertaking fully or partly by another undertaking especially by means of fusion, conversion or the direct or indirect acquisition of shares of an undertaking by another undertaking either when a participation rate of 25% as well as a participation rate of 50% is met or exceeded.
Additionally, each other connection between undertakings upon which an undertaking directly or indirectly exerts a controlling influence over the other undertaking is deemed to constitute a concentration.

3. Does the merger legislation cover joint ventures? What are the relevant provisions? [Please provide links towards the relevant provisions] Please provide examples of case law (with ref.), if possible, e-Competitions case law.

According to sec 7 subsec 2 ACA a concentration is also deemed to arise through a creation of a joint venture performing on a lasting basis all the functions of an autonomous economic entity (see for example Cartel Court 25 Kt 160/03). Please refer to Appendix 1 for the wording of the respective provision.

4. Are there specific provisions/exceptions for markets of insufficient importance?

There are no specific exceptions for markets of insufficient importance. However, the duty to notify a planned concentration to the FCA is subject to the turnover thresholds set out in sec 9 subsec 1 and 2 ACA.

5. Which institutions have the burden of merger enforcement?

It is the task for both the FCA and the Federal Cartel Attorney to closely examine the notified concentrations. As official parties in competition law matters each of the two institutions may individually request an in-depth examination of the concentration before the cartel court.

6. What is the role of each institution?

Please refer to answer 7 of chapter 4.2.

4.2 Investigation

7. What is the process of decision making in a merger case?

Proposed concentrations must be notified to the FCA. Within a period of four weeks from the submission date the FCA and the Federal Cartel Attorney may apply for an in-depth investigation of the concentration before the Cartel Court. If such an application is not made by one of the official parties, the concentration is deemed cleared. Within a period of five months from the date of receipt of the (first) application for an in-depth examination, the Cartel Court has to approve the proposed concentration or prohibit it, if the implementation of the concentration would lead to the creation or strengthening of a dominant market position. The undertakings concerned and the official parties may appeal against this decision before the Upper Cartel Court. Within additional two months from submission of the files, the Upper Cartel Court has to adopt its appellate decision.

8. What are the investigative powers used in merger assessment? Are third parties obliged to answer questions set by the authorities? What are the relevant provisions? [Please provide links towards the relevant provisions]

According to sec 11 para 3 ACA, each undertaking whose legal or economic interests are affected by the proposed concentration can address written statements to the FCA. The FCA may also request information from third parties (sec 11a FCAA). The third parties are obliged to answer to the information request if it has been confirmed by a decision of the Cartel Court. However, sec 11a FCAA may not be invoked in Phase II-proceedings.

9. What are the stages of the investigation? Which bodies are responsible for each of these stages?

Please refer to answer 7 of this chapter for the different stages of merger proceedings.

10. What are the thresholds/tests for asserting jurisdiction? What are the relevant provisions? [Please provide links towards the relevant provisions]

The turnover thresholds are set out in sec 9 subsec 1 and 2 ACA: Concentrations must be notified to the FCA, if all undertakings concerned achieved in the last business year a combined aggregate worldwide turnover of more than EUR 300 million and a combined aggregate domestic turnover of more than EUR 30 million and if at least two of the undertakings concerned achieved a world wide turnover of more than EUR 5 million each.

As an exception to this rule sec 9 subsec 2 provides that a concentration does not require prior notification to the FCA if only one of the undertakings concerned achieved a domestic turnover of more than EUR 5 million and the remaining undertakings achieved a combined aggregate worldwide turnover of less than EUR 30 million in the previous business year.

11. What types of Guidelines/Notices are there? [Please provide links towards the relevant provisions]

Other than for Community law no guidelines/notice exist for the Austrian merger control. To some extent helpful information can be found on the website of the FCA.

12. Do all mergers need to be notified? Are there any exceptions?

The requirement to notify merger to the FCA essentially hinges on whether the undertakings concerned meet the turnover thresholds. There is, however, an exemption of the notification obligation if credit or banking institutions temporarily hold shares of undertakings which need to be sold or reorganized for a period not exceeding 1 year, provided that the respective shareholders do not exercise their voting rights.

13. Are there pre-notifications discussions?

It may be useful to approach the FCA on an informal basis to discuss any notification requirements. However, due to shortage of personal the FCA is very often not willing to provide legal guidance.

14. How many types of notifications are there? (e.g. short-form, merger notice)

The FCA provides a Form CO. If there are no affected markets of the concentration, i.e., in case of a horizontal merger, the joint market share is at least 15% or, in case of a vertical merger, the undertakings concerned have on a up-stream or down-stream market a market share of more than 25%, less information will have to be submitted to the FCA.

15. Which party notifies and what is the deadline for notification?

Pursuant to sec 10 ACA each of the undertakings has the right to notify the concentration to the FCA. There is no specific deadline for the notification. However, a concentration must not be implemented unless the concentration has been cleared by the competition authorities.

16. Who pays for the notification and how much?

The notifying party has to pay a fee of EUR 1,500.-- previous to filing of the notification. Should one of the official parties have applied for an in-depth investigation of the concentration, the Cartel Court (which is competent to review the concentration) may order a fee of up to EUR 30,000.-- as procedural costs.

17. Can the merger complete prior to clearance? If not, what is the penalty for completing prior to the decision?

Implementation of the concentration prior to its clearance is not allowed and can result in a fine of up to 10% of the aggregate turnover achieved by the undertakings concerned in the previous business year.

18. How long does a Phase I investigation take? Please provide examples of case law (with ref.), if possible, e-Competitions case law.

Phase I proceedings can take up to four weeks (sec 11 para 1 ACA).

19. How long does a Phase II investigation take? Please provide examples of case law (with ref.), if possible, e-Competitions case law.

A Phase II investigation before the Cartel Court can take up to five months (sec 14 para 1 ACA).

20. How is the merger investigation structured? Is it done by one authority or more?

Please refer to question 7 of this chapter.

21. How effective is the authority in rendering decisions within the time limits it has?

Both, the official parties and the Cartel Court render their decisions within the above mentioned time limits.

22. Are these time limits set by statute [Please provide links towards the relevant provisions] or are they administrative?

The time limits of Phase I and Phase II are set out in sec 11 and sec 14 ACA.

23. Can time limits be extended? Under what conditions?

Time Limits are not open to extension.

24. Are there any penalties in relation to a merger investigation? [Please provide links towards the relevant provisions]

Sec 29 ACA provides for the imposition of fines amounting to up to 10% of the turnover of the undertaking concerned during the last business year in case a concentration was implemented prematurely. An undertaking can also be fined for false or misleading information provided in the course of a merger notification. In this case the fine can amount up to 1% of the turnover, achieved by the undertaking concerned in the previous business year.

25. Are ancillary restrictions covered by the decision? Please provide examples of case law (with ref.), if possible, e-Competitions case law.

Ancillary restrictions are usually covered by a clearance decision. In practice, the EC-commission notice on ancillary restraints will be consulted to decide whether a particular restriction is indeed ancillary to the concentration.

26. Are mergers involving companies headquartered in other jurisdictions caught? Under what circumstances? Please provide examples of case law (with ref.), if possible, e-Competitions case law.

If the turnover thresholds are met, but the target of a transaction is not headquartered in Austria, the concentration will have to be notified in Austria only, if the concentration would have an appreciable effect on the Austrian markets. According to the case law of the Cartel Court, an appreciable effect exists, if the target achieved any turnover in Austria or has subsidiaries/participations in Austria or if the implementation on the planned concentration would increase the market position of the acquiring undertaking on the (Austrian) market (OGH 16 Ok 49/05).

27. What are the theories of harm (unilateral, coordinated effects etc.)? Who has the burden of proof?

The main assessment criterion is whether the proposed concentration leads to the creation or strengthening of a dominant position on the relevant market. Unilateral, coordinated or portfolio effects are taken into account by the Cartel Court in this assessment. The undertakings concerned bear the burden of proof if a presumption of dominance applies to the parties of the concentration.

28. Are Courts involved in the merger investigation? Please provide examples of case law (with ref.), if possible, e-Competitions case law.

Please refer to answer 7 of this chapter.

4.3 Undertakings

29. What types of undertakings are available? (structural, behavioural etc.) Please provide examples of case law (with ref.), if possible, e-Competitions case law.

Recent case law suggests that both structural and behavioural undertakings are quite common. Structural undertakings include for example the abandonment of stores and branches in favour of a competing undertaking (Spar/Meinl, 25 Kt 122/00). Another structural undertaking would be the reassurance not to close down a production facility comprising more than 180 employees (Lenzing/Tencel, 29 Kt 133/05). Behavioural undertakings would be for example the reassurance of the notifying parties to offer products of a competitor on a wholesale level on comparable and non-discriminating conditions (see Cartel Court 29 Kt 5/04). Both structural and behavioural undertakings can be offered in Phase I and in Phase II proceedings.

30. Can undertakings be offered in Phase I? What are these? Please provide examples of case law (with ref.), if possible, e-Competitions case law.

Please refer to answer 29 of this chapter.

31. Can undertakings be offered in Phase II? What are these? Please provide examples of case law (with ref.), if possible, e-Competitions case law.

Please refer to answer 29 of this chapter.

32. How are undertakings implemented? Are there monitoring provisions? What happens if an undertaking is not fulfilled?

In most cases commitments are phrased as obligations rendering a concentration legal. If the parties to a concentration disregard these obligations the Cartel Court may later enjoin measures on the notifying parties in order to mitigate or remedy effects caused by the concentration. Apart from that, the disregard of obligations is treated in the same way as the premature implementation of the concentration pursuant to sec 17 subsec 2 ACA. A commitment disregarding measures enjoined by the cartel court or disregarding its commitment has to face fines of up to 10% of its aggregate turnover of the last business year.

4.4 Efficiencies

33. Are efficiencies taken into account in merger assessment? Have there been cases where efficiencies played an important role?

Efficiencies are taken into account insofar as sec 12 para 2 ACA explicitly provides that the cartel court may approve a concentration notwithstanding of the creation or strengthening of a dominant position, if the concentration either leads to the improvement of competitive conditions outweighing the disadvantage of dominance, or if the concentration is essential for the international competitiveness of the undertakings concerned and is thus economically justified.

34. What are the relevant criteria?

Please refer to the answer to question 33.

35. In which industries do you normally see efficiencies arguments being raised?

In recent merger case law, efficiency arguments have not played a significant role. However, they have been raised in merger proceedings concerning the advertising industry and the building material industry.

4.5 Failing Firm Defence

36. Are there failing firm defence provisions in the legislation?

No ACA-provision explicitly addresses the failing firm defence. However, it is assumed that the failing firm defence would be accepted by the Upper Cartel Court.

37. What are the criteria that need to be satisfied for the failing firm defence to apply?

The falling firm defence generally applies if one of the involved undertakings would be no longer viable on its own.

38. Has failing firm defence arguments been successfully used in any cases?

Austrian merger case-law has not yet taken recourse to the failing firm defence.

39. Are there failing division defence provisions in the legislation?

Please refer to the answer to question 36.

40. What are the criteria that need to be satisfied for the failing division defence to apply?

Please refer to the answer to question 37.

41. Has failing division defence arguments been successfully used in any cases?

Please refer to the answer to question 38.

42. Are there failing industry defence provisions in the legislation?

Please refer to the answer to question 36.

43. What are the criteria that need to be satisfied for the failing industry defence to apply?

Please refer to the answer to question 37.

44. Has failing industry defence arguments been successfully used in any cases? Please provide examples of case law (with ref.), if possible, e-Competitions case law.

Please refer to the answer to question 38.

5. Procedure

5.1 Investigation

1. What are the powers of investigation? What are the relevant provisions? [Please provide links towards the relevant provisions]

The FCA is vested with extensive powers of investigation. Pursuant to sec 11a and sec 12 FCAA the FCA is authorized to ask for documents to be produced and information to be provided. Furthermore, the Cartel Court may also impose fines on undertakings not complying with a procedural order of the FCA (sec 35 ACA). This fine can be up to 5% of the respective undertaking´s average daily turnover for every day of delay to provide the requested documents or information. On application of the FCA, the Cartel Court may also order a house search.

2. What are the stages of the investigation? Which bodies are responsible for each of these stages? How long does an average investigation take? Please provide examples of case law (with ref.), if possible, e-Competitions case law.

As a first step, the FCA issues a written order in which it obliges the respective undertaking to submit certain business documents or information. If the undertaking is not willing to follow that order, the Cartel Court confirms, on application of the FCA, that the requested documents or information has to be submitted. The concerned undertakings may appeal both against the court ruling to produce documents or to give detailed information and the order authorizing the house search warrant before the Upper Cartel Court. An average investigation takes about 6 - 12 months. References to the investigation activities of the FCA can be found on its website http://www.bwb.gv.at/BWB/English/default.htm and http://www.bwb.gv.at/BWB/Aktuell/default.htm in the news section.

3. Who enforces these powers? Are Courts involved? Are interim measures available? What are the relevant provisions? [Please provide links towards the relevant provisions]. Please provide examples of case law (with ref.), if possible, e-Competitions case law.

As already mentioned above these powers are jointly enforced by the FCA and the Cartel Court. The relevant provisions are secs 29, 35 and 48 ACA and sec 11, 11a and 12 FCAA (see OGH 16 Ok 7/06, 16 Ok 10/05).

4. What are the sanctions for non-compliance? What are the relevant provisions? [Please provide links towards the relevant provisions]

Concerning the fine for non-compliance pursuant to sec 35 ACA please refer to the answer to question 1 of this chapter and to the appendix.

5. What is the extent of the legal privilege?

Unlike EC-antitrust provisions Austrian competition law does not provide for an explicit legal privilege.

6. Can personal premises (home, car…) be searched?

Yes. Section 12 FCAA does not confine "down raids" to business premises, so personal premises may also be subjected to a search.

5.2 Fines - Sanctions

7. What is the maximum level of fines? What are the relevant provisions? [Please provide links towards the relevant provisions]

Pursuant sec 29 ACA, the Cartel Court may impose fines of up to 10% of the last year´s aggregate turnover of the respective undertaking if the undertaking intentionally or negligently violated the prohibition of anti-competitive practises, the prohibition to abuse a dominant market position and the prohibition to implement a merger before clearance according to Austrian and EC competition law.

Reduced fines amounting to 1% of last year´s aggregate turnover of the respective undertaking may be imposed, if the undertaking did not comply with, inter alia, certain decisions of the Cartel Court or if the undertaking provided false or misleading information in competition law proceedings.

8. How is the fine calculated?

According to Sec 30 ACA the fine depends on the seriousness and the duration of the violation, on the enrichment resulting from the violation, on the degree of default (i.e., was it an intentional or only negligent violation of competition law?) and on the economic capability of the undertaking.

9. What is the trend of the NCA in terms of sanctions?

As sec 30 ACA states, the calculation of fines must take into account the duration and the intensity of the infringement. The trend is, however, that the amount of fines is increasing.

10. Are there criminal sanctions? What are these? What are the relevant provisions? [Please provide links towards the relevant provisions]

The ACA no longer provides for criminal sanctions. However, according to sec 168b of the Austrian Penal Code persons involved in anti competitive arrangements in the context of public procurement proceedings may be penalized with a prison sentence of up to three years.

11. Can the appellate bodies review the sanctions and/or amount of the fine? What is the trend of the case law?

The appellate body (Upper Cartel Court) can review the amount of the fine, if the circumstances listed in sec 30 ACA have not been or have been inadequately considered.

5.3 Leniency

12. How can an undertaking apply for leniency? What are the relevant provisions? [Please provide links towards the relevant provisions]

The relevant provisions for the Austrian leniency program can be found in sec 11 subsec 3-6 FCAA. The FCA provides both a leniency handbook and a leniency application form on its webpage.

13. What are the reductions in the fines for the first leniency applicant? How do the reductions in the fines change for the second applicant? For the following ones?

The FCA is entitled to fully refrain from imposing fines for the first leniency applicant but it is not under a legal obligation to do so. For subsequent leniency applicants the FCA indicated in its handbook to apply a staggered reduction scale when applying for fines: the second undertaking applying for leniency can expect a fine reduction of between 30 to 50%, the third undertaking can expect a fine reduction of between 20 to 30%, and each remaining undertaking can expect a fine reduction of up to 20%.

14. What are the obligations of the leniency applicant?

The leniency applicant stays under the obligation to fully and efficiently cooperate with the FCA. This obligation includes the disclosure of all relevant documents concerning the infringement and the reprocessing of all verbal agreements in connection with the anti-competitive conduct of the undertaking.

15. What is the policy of the NCA in terms of leniency?

Since the Austrian leniency program is a relatively new instrument in Austrian antitrust law, the experience with this program is quite limited. Nonetheless, it seems that the leniency program has gained considerable attraction as several undertakings have already applied for leniency before the FCA.

Recently, the FCA applied for a EUR 88 Million-fine against five undertakings of the elevator and escalator industry. In this first Austrian leniency proceeding, the FCA did not apply for a fine for the first leniency applicant. The fine imposed on the second leniency applicant was reduced by 50%. (Please refer to the Notice of the FCA from 5 October 2007: http://www.bwb.gv.at/BWB/Aktuell/aufzug__und_fahrtreppenindustrie.htm)

5.4. Judicial review and enforcement

16. What is the deadline to lodge an appeal against a decision from the NCA? What are the relevant provisions? [Please provide links towards the relevant provisions]

As mentioned above, competition law decisions are rendered by the Cartel Court. The deadline to lodge an appeal against a decision by the Cartel Court with the Upper Cartel Court is four weeks.

17. Is there a specialist tribunal for appeals? [Please provide links]. Do Courts hear the appeals?

As mentioned in question 16, the Upper Cartel Court is competent to hear appeals against decisions rendered by the Cartel Court.

18. What can the appellate bodies examine in an appeal? Can they go to the merits of the case? Or do they limit their review to procedural issues? Please provide examples of case law (with ref.), if possible, e-Competitions case law.

The Upper Cartel Court is acting as an appellate court. Therefore, the court is limited to review whether the legal subsumption made by the Cartel Court was correct. The Upper Cartel Court is not competent to review the consideration of evidence.

19. What happens upon the annulment of a decision? Is the decision remitted? Please provide examples of case law (with ref.), if possible, e-Competitions case law.

The Upper Cartel Court may either uphold or annul the decision of the Cartel Court. In case of an annulment the Upper Cartel Court may refer the case back to the Cartel Court, which would have to render a new decision taking into account the guidelines given by the Upper Cartel Court. Alternatively, the Upper Cartel Court can also render a decision on the merits of the case.

20. How long does the appeal process usually take? Please provide examples of case law (with ref.), if possible, e-Competitions case law.

Appeals to the Upper Cartel Court are usually dealt with within 6 to 10 months. In merger control proceedings the Upper Cartel Court has to render its appellate decision within two months.

21. How many stages are there in the appeal process, until the case is heard by the highest appellate body? What is the role of the Supreme Court? Is there any trend in the Supreme Court policy? Please provide examples of case law (with ref.), if possible, e-Competitions case law.

The Austrian Supreme Court acts as the Upper Cartel Court and is therefore the court of last instance.

22. Are interim measures available? What is the trend in granting interim measures? What are the relevant provisions?

Pursuant to sec 48 ACA the Cartel Court may grant interim measures upon application by a party (not necessarily an official party) in order to stop an undertaking from infringing substantive Austrian or EC competition provisions.

23. Which Courts are in charge of judicial review of investigations?

The Upper Cartel Court is competent to hear appeals lodged against decisions of the Cartel Court in the context of investigations.

24. Can private actions occur? Are there such cases? What is the trend?

Private actions are well-established in the Austrian competition law system. Whereas in the past private actions were mainly focussed on uncovering and subsequently stopping illegal competitive practices, recent developments suggest that actions for damages will become more important in the future.

25. What about follow-up actions? What is the trend? Please provide examples of case law (with ref.), if possible, e-Competitions case law.

Follow-up actions have not yet played a significant role in competition law enforcement in Austria. This is due to the fact that the complainant only has limited access to the files on court proceedings initiated by the official parties. Thus, it proved to be very difficult for the complainant to substantiate its claim with the necessary evidence.

26. What about class actions? What is the trend?

The Austrian legal system does not provide for class actions. However, in competition law cases with a large number of claimants of the consumer associations (to which the individual claims had been assigned), filed the complaint with the respective Austrian competition authorities.


6. Europe & International

1. What is the trend for the NCA and Courts to enforce EC competition provisions? Please provide examples of case law (with ref.), if possible, e-Competitions case law.

The FCA closely cooperates with EC competition law authorities when carrying out investigative actions. It is also in close contact with the said authorities when deciding upon its own competence in merger and antitrust proceedings. Regarding substantive issues it has to be mentioned that the ACA has aligned the Austrian antitrust provisions with the relevant EC provisions.

2. Is there any case of competition related Art. 234 EC preliminary requests to the ECJ?

Currently, no Austrian request for a preliminary ruling by the ECJ relating to competition law issues is pending. In the past, in the case Bronner the ECJ had to deal with essential facilities issues based on an Austrian court case.

3. Is there any case where the Courts and/or the NCA asked for the assistance of the EC Commission? Is the outcome of this/these case(s) known? Is there a case where the EC Commission applied for amicus curiae?

Not applicable.

4. Is there cooperation with the other NCAs in cross border anticompetitive practices cases? How developed is this cooperation? Is there any Guide-lines or text?

Within the framework of the ECN the FCA closely cooperates with other national competition authorities. The cooperation includes a concerted approach against cross border competition law infringements.

5. Is there extraterritorial application of anticompetitive practices enforcement?

As sec 24 subsec 2 ACA states, the ACA is only applicable if an infringement against the ACA has an impact on the domestic market. Therefore, the ACA is open for extraterritorial application as long as an anti-competitive practice has an perceptible effect on the domestic market.

Disclaimer

Alle Angaben auf dieser Website dienen nur der Erstinformation und können keine rechtliche oder sonstige Beratung sein oder ersetzen. Daher übernehmen wir keine Haftung für allfälligen Schadenersatz.

The material contained in this website is provided for general information purposes only and does not constitute legal or other professional advice. We accept no responsibility for loss which may arise from reliance on information contained on this site.