The Cartel Court has fined Europay Austria Zahlungsverkehrssysteme GmbH, which operates Maestro, the most widely used debit card system in Austria, a record €5 million for an alleged illegal cartel and abuse of a dominant market position. The fine is the highest set by the Cartel Court since the introduction of the fine system in 2002.
The Supreme Court recently released a decision, contradicting a 2005 ruling, that an Austrian undertaking need not notify a merger because the target was neither currently nor potentially active in the Austrian market, and the relevant markets for the transaction (banking) were national in scope.
The new Cartel Act came into force on January 1 2006. As the legislature was eager to bring Austrian cartel legislation as far as possible into line with EU cartel legislation, the act implemented the long-established EU system of not only punishing members of a cartel with high fines, but also rewarding those members of a cartel who 'blow the whistle' before the authorities know about the cartel.
The Cartel Act has traditionally been seen as a 'paper tiger' that poses little threat. However, following recent amendments to the act, this view has changed significantly. In a recent decision, the act was used by the Cartel Court to fine a company €1.5 million for illegally implementing a merger.
The new Cartel Act 2005 will take effect on January 1 2006 and will bring domestic cartel law into line with European law. Amendments include the abolition of various categories of cartels as well as the special regime for vertical distribution agreements.
The Cartel Act has traditionally been seen as a 'paper tiger' that poses little threat. However, this view has changed significantly following amendments to the act. Recently, the former state-owned telecommunications provider was heavily fined for a tariff model that had previously been explicitly permitted.
The draft Cartel Act 2005 amends existing anti-cartel provisions to reflect EU cartel legislation, for instance eliminating the special rules on vertical agreements from the current legislation. In addition, the draft act broadens certain definitions relating to mergers. It is expected to come into force on January 1 2006.
The Federal Competition Authority (FCA) recently published guidelines for the notification of mergers. Its model form should be followed as closely as possible. Otherwise, the FCA may send it back to the parties in question, requesting additional information with the friendly hint that notification will be regarded as incomplete if no further information is provided.
The Federal Competition Authority recently became operational. Its director general's main aim is to take firmer action against violations of antitrust law in terms of more rigorous punishment for illegal arrangements and abuse of market power in Austria.
Amendments to the Cartel Act and the new Act on the Establishment of a Federal Competition Authority were published on April 16 2002, to take effect on July 1 2002. The Cartel Court's controversial decision in the Formil Case appears to have expedited the reforms.
The Austrian Cartel Court must be notified of a merger if three separate turnover thresholds are met. Recently, the court has begun to establish a new rule whereby a merger need not be notified if it has no appreciable effect in Austria.