Headaches for whistleblowers - International Law Office

Acting on a respective application from the Federal Cartel Authority (FCA), the Higher Regional Court of Vienna, acting as cartel court, recently fined four print chemical wholesalers €1.5 million (not final).(1) The FCA's investigations were initiated by two whistleblowers that filed consecutive applications with the FCA to be granted immunity from the fine. Whereas the first whistleblower informed the FCA of cartel activities within one particular timeframe, the second whistleblower also reported on collusions within another (later) timeframe. The FCA's investigations revealed that the first whistleblower also participated in this second cartel period.

Pursuant to Section 11(3) of the Competition Act, the FCA may refrain from requesting the imposition of a fine on entrepreneurs that, among other things, inform the FCA of an infringement of which it was previously unaware and that cooperate with the FCA in order to clarify the case completely. The FCA argued that the first whistleblower had not completely informed it of the infringement; therefore, it requested that the cartel court also fine the first whistleblower.

For the first time, the court had to deal with the question of whether a fine can be imposed on the first whistleblower in the event that its application for immunity is incomplete. The court ruled that it is not competent to decide on whether the FCA has wrongly refused a whistleblower immunity from a fine, since Section 11(3) of the Competition Act concerns only the FCA. The court found itself competent only to appreciate the whistleblower's contribution to the establishment of the truth when calculating the fine amount. In the case at hand the court determined the fine to be imposed on the first whistleblower in accordance with the FCA's respective application.

The cartel court's decision has been challenged and the appeal is pending before the Supreme Court, acting as higher cartel court. However, the cartel court's decision reveals that whistleblowers cannot be sure of guaranteed immunity from a fine (in cartel court proceedings), even if they were the first to report the infringement to the FCA.

For further information on this topic please contact Dieter Hauck or Esther Hold at Preslmayr Attorneys at Law by telephone (+43 1 533 16 95), fax (+43 1 535 56 86) or email (hauck@preslmayr.at or hold@preslmayr.at).

Endnotes

(1) Higher Regional Court of Vienna as cartel court, April 14 2010, 25 Kt 5/09.