The Supreme Court (acting as the Higher Cartel Court) recently issued its decision in a case concerning a tender procedure organised by a large Austrian municipality that was subject to heated debate among practitioners. The court ruled that the consortia (if consortia at all) were so-called 'de minimis cartels' within the meaning of the Cartel Act, and therefore were in any case exempt from the cartel ban.
The Supreme Court recently considered a case in which an acquiring entity failed to notify the Austrian Federal Cartel Authority (FCA) of a share increase in relation to a Hungarian entity. The case came to light following a subsequent share increase, of which it duly notified the FCA. The acquiring entity's actions were based on legal advice that later turned out to be erroneous.
The Supreme Court referred a question to the European Court of Justice (ECJ) regarding whether an error on the legality of actions based on advice from a specialist adviser or a decision by a national competition authority would be a viable defence against fines imposed on an undertaking for infringing Article 101 of the Treaty on the Functioning of the European Union. The ECJ has now answered this question in the negative.
The Federal Cartel Authority (FCA) has published draft guidelines on vertical (pricing) restraints. The FCA described certain practices and commented on their respective illegality or legality with a view to preventing future infringements. While it remains to be seen how these guidelines will affect authority and industry practice, the FCA and national competition authorities are increasingly monitoring vertical relationships.
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.
The Supreme Court has clarified that even after an entity has ceased to do business, it may remain an 'undertaking' for the purposes of the Cartel Act, since it may transfer a market share of considerable value. The decision leaves open the possibility that an acquisition of assets from an insolvent company may constitute a merger under Austrian law.
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). The FCA's investigations were initiated by two whistleblowers that filed consecutive applications with the FCA to be granted immunity from the fine.
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.
In 2008 and 2009 the Supreme Court, acting as Higher Cartel Court, rendered rare decisions on the basis of the Local Supply Act. These controversial decisions may have significant consequences for the qualification of undertakings' discriminatory practices.
The Supreme Court, acting as Higher Cartel Court, recently confirmed a second Cartel Court fine decision based on the 2006 leniency programme. According to the Supreme Court's decision, in future, before filing its applications with the Cartel Court, the Federal Cartel Authority will have to examine in detail whether the preconditions for accepting an undertaking under the leniency programme have been met.
The Supreme Court, acting as the Higher Cartel Court, recently rendered a new decision on a previous infringement of antitrust law that had ongoing effects. The case involved the allegedly abusive promotion of contracts no longer available on the market by the defendant.
The Supreme Court has upheld two Higher Regional Court of Vienna (as Cartel Court) decisions and ruled on the preconditions for receiving a declaratory decision on past infringements of antitrust law. Damages claims following a fine decision in cartel matters must be filed in the civil courts under the rules of civil procedure, without additional assistance from the cartel authorities and the Cartel Court.
The Supreme Court recently ruled on the abuse of a dominant market position through promotional giveaways that conformed to the provisions of the Act against Unfair Competition. The court had to judge the legitimacy of a newspaper that held a dominant position offering promotional giveaways to potential subscribers.
The Higher Cartel Court recently redoubled a fine imposed by the Cartel Court for infringement of the obligation to provide information upon a formal information request by the Federal Cartel Authority. The decision emphasizes the importance of fulfilment of this obligation.