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 Competition Council marked the end of 2012 by announcing the conclusion of two investigations into alleged bid-rigging practices surrounding public tender procedures organised by two of Romania's most important public undertakings. In addition, the procedure by which the council took control of the Supervisory Board in the Railway Sector from the Ministry of Transport came to a greatly anticipated end.
In a recent decision the Competition Office concluded that three major rail cargo companies had participated in a price-fixing and market-sharing arrangement in the Hungarian rail cargo market between 2004 and 2009. As a result of the infringement, the Competition Office imposed substantial fines amounting to Ft1.25 billion (approximately €4.5 million). All three infringers were state-owned undertakings.
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.
Gun jumping and other violations of the obligation to suspend a transaction prior to clearance can be costly in Germany. Foreign-to-foreign mergers are subject to German merger control if they have a 'domestic effect' – a term that is interpreted widely by the Federal Cartel Office (FCO). The FCO has repeatedly made clear that it will enforce this obligation, and has imposed fines on a number of occasions.
The Croatian Competition Agency has cleared the extraterritorial concentration arising from a joint venture between AGRANA Beteiligungs-Aktiengesellschaft (Austria) and RWA Raiffeisen Ware Austria Aktiengesellschaft (Austria). Although the transaction will have an effect on the Croatian market, it raised no competition concerns.
In what is quickly becoming an established tradition, the Competition Council has issued its third annual report on competition in key sectors of the economy. Focusing on banking, pharmaceuticals and public procurement, it highlights the sensitive sectors that the council may be targeting for investigations and, for the first time, outlines the indicators used by the council in assessing levels of competition in a particular sector.
Tender associations are associations of economic entities with the aim of providing a unified offer in public bids. According to the opinion of the Croatia Competition Agency, they trigger no antitrust concerns provided that they are not based on agreements or collusions which have the aim or effect of distorting competition. However, this position is far from settled.
Since the beginning of 2010 the Commission for the Protection of Competition has issued 25 clearance decisions on notification and five decisions in which it imposed penalties for non-notification and premature implementation of concentrations. Among others, the commission approved two concentrations in the supermarket retail sector and one in the mobile telecommunications sector.
In 2009 the Supreme Court authorised the search of an Austrian company's premises to investigate possible cartel law infringements relating to the German fire engine market. Recently, in dealing with the same alleged infringement, the court issued a decision on the preconditions for searching the offices of attorneys who represent possible cartel members
The Supreme Court, acting as Higher Cartel Court, recently rendered its first decision on the preconditions for the Federal Cartel Authority to conduct house searches in Austria on behalf of other EU antitrust authorities. The decision allows for the execution of house searches in Austria even in cases that do not affect the Austrian market.
The Federal Cartel Office (FCO) has fined US company Mars Inc €4.5 million for closing a deal to acquire US pet food producer Nutro Products without awaiting FCO approval of the transaction. The decision is a signal that the FCO is determined to enforce compliance with the suspension obligation in merger cases by imposing considerable fines.
The Supreme Court (as the Higher Cartel Court) recently issued a record fine of €5 million for an alleged cartel and abuse of a dominant position, thereby bringing into question the future fining policy of the Austrian cartel authorities. This update focuses on the main conclusions that can be drawn from this decision.
The delisting of Leberkäse by a large grocery retailer in 2004 led to an investigation by the Federal Competition Authority into the whole grocery sector. However, a number of retailers and suppliers refused to answer the authority's information requests on the grounds that they would have to reveal business secrets.
Including: Reform; General Procedure; Cartels; Vertical Restrictions of Distribution; Merger Control; Dominant Market Position.
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 European Court of First Instance has dismissed an appeal brought by Wirtschaftskammer Kärnten and best connect Ampere Strompool GmbH against the European Commission's decision to grant conditional clearance to the Verbund/EnergieAllianz merger.
The European Commission has published the full text of its decision to grant conditional clearance in relation to T-Mobile Austria GmbH's acquisition of Tele.Ring Unternehmensgruppe. The case constitutes the first gap case since the EC Merger Regulation was recast in 2004.