International Law Office - Legal Newsletters, Law Firm Directory and Legal News

Competition

Austria

Overview
Including: Reform; General Procedure; Cartels; Vertical Restrictions of Distribution; Merger Control; Dominant Market Position.

The long-discussed changes to the Austrian competition laws have finally become effective. These concern, among other things, the leniency programme implemented in Austria in 2006. The amended Competition Act now makes it possible for undertakings to qualify for full immunity from fines on a leniency request even after the Federal Competition Authority has gained knowledge of the reported infringement.

The Higher Cartel Court recently ruled on the obligation of dominant undertakings to contract with other market participants, including competitors, under specific circumstances. It held that they must be very careful to avoid discriminating against other undertakings by refusing to contract with them. The decision provides interesting clarifications on the applicability of the 'essential facilities' doctrine in such cases.

The Cartel Court recently rejected a Federal Cartel Authority action to fine approximately 50 Austrian plumbers for alleged collusion in a tender procedure initiated by the City of Vienna housing agency in 2007. The court ruled that all activities of the defendants - regardless of whether they had actually infringed cartel law - were exempt from the cartel ban under the Austrian de minimis regime.

Two recent Supreme Court decisions have triggered significant debate in the competition field, both in Austria and at a European level. Both cases questioned whether a justified error in law could exclude the imposition of a fine for alleged anti-competitive behaviour. One case has been referred to the European Court of Justice, as the Supreme Court considered that EU law did not provide a clear answer.

After a lengthy internal discussion process, the Ministry of Justice and the Ministry for Economic Affairs recently presented a draft bill for changes to the competition law in Austria. While fundamental changes to this draft bill are unlikely to occur, it remains to be seen how these amendments - if enacted - will affect administration, jurisdiction and advocacy for competition law in Austria.

For some time, the official guidelines of the tax authorities on income tax have included the way in which competition fines should be treated under income tax law. With the recent entry into force of the Act Changing Tax Law 2011, the deduction of competition fines as a whole is now explicitly excluded. Under the new law, undertakings hit by fines for infringing competition law may feel a double impact.

More updates >

E-commerce

Austria

Overview
Including: Consumer Protection Act; Spamming; Digital Signatures Act.

The Hamburg Landgericht has issued a surprising ruling that the country-code top-level domain (ccTLD) '.at' has no direct reference to Austria. The court reached a general conclusion that ccTLDs do not possess sufficient distinction to impose residency requirements on the registrant of such a domain name.

For the first time, the Supreme Court has ruled on the issue of whether the costs of a World Intellectual Property Organization (WIPO) procedure for a domain name dispute can be claimed as damages from the defeated party.

The Supreme Court has clarified two aspects of the E-commerce Act, defining the main features of the term 'information services' and specifying contact details that ought to appear on websites. The defendant in question advertised websites where the price of goods and services was not displayed, as well as free access to live webcam transmissions when in fact access was not free.

The Austrian Data Protection Commission recently decided that an internet service provider which offers website hosting services is a data processor under the EU Data Protection Act. The commission ruled that a person who processes personal data merely by storing it is considered to be a processor if he acts in accordance with the instructions of the controller.

The Supreme Court has ruled that if a website merely advertises a product or service and no contract can be concluded through it, then the service provider need not make contractual terms and conditions available in accordance with Section 11 of the E-commerce Act.

In a recent decision the Supreme Court ruled that a judgment in the plaintiff's favour concerning unfair competition and trademark infringement could be published on the defendant's website. The court stipulated that online reproductions of judgments must appear in a pop-up frame and remain online for 30 days.

More updates >

Healthcare & Life Sciences

Austria

In recent years the average annual growth of public expenditure for healthcare was consistently higher than the nominal growth of gross domestic product. The Ministry of Health has produced a draft bill that aims to bring the two growth rates into line with each other. In theory, the draft bill is well suited to achieve the aim of cost containment, but in practice its results are likely to be limited.

The Federal Office for Safety in Healthcare has issued new information on compassionate use programmes, which provides manufacturers of medicinal products with a useful guideline for gathering the necessary documentation for a successful application for such programmes in Austria. It also demarcates the borderline between compassionate use programmes and clinical trials.

The Austrian legislature recently amended the rules on advertising of medicinal products to professionals to bring them in line with the jurisdiction of the European Court of Justice. However, contrary to the explanatory materials mentioned in the bill, the limitation in relation to advertising to laypersons remains. The legislation as it stands is therefore not in compliance with EU law.

A recent advertisement placed by a Hungarian dentist in several Austrian newspapers, under the heading "Spring Promotion", was found by the Austrian Supreme Court to be illegal and to be in danger of bringing the dental profession into disrepute. The decision demonstrates that the Supreme Court will maintain its strict approach on advertising limits for medical professionals in Austria.

Information Technology

Austria

In a recent decision the Supreme Court considered whether an ex-employee who processed his former employer's data had violated the Data Protection Act 2000. The decision is astonishing, given that data of a commercial nature (eg, concerning business relations and confidentiality) is protected under domestic law as much as that concerning an individual's private and family life.

As the likely successor of bar codes for the labelling of goods, radio frequency identity chips and tags are set to become widespread. However, critics concerned about data protection issues strongly oppose the introduction of the chips, as information about the bearer can be extracted wirelessly without his or her knowledge.