The Federal Cartel Authority (FCA) recently published for consultation draft guidelines on the good conduct of entrepreneurs. Generally, neither the practices nor the laws as described by the FCA are new. The major issue is fear: smaller and less aggressive enterprises are afraid to lose business if they stand up to their dominant contractual partners in cases where the loss of a contract could lead to their financial collapse.
In 2017 an additional merger threshold was implemented to catch cases that fall below existing turnover thresholds but where the consideration for the transaction exceeds a specified amount and the target is active in the relevant country to a significant extent. While the first cases and legal discussions have shown that there is considerable uncertainty regarding the application of this legislation, new draft guidelines have been published on the application of the new, quite difficult piece of legislation.
To date, the law contains no definition of 'implementation' in relation to mergers. There has been much debate in doctrine regarding whether implementation should be defined broadly as the mere possibility of influencing the target's behaviour, or more narrowly as the actual exercise of such influence. The Cartel Court's case law has followed the narrower definition. However, a recent Supreme Court decision has clarified the matter and reached a different conclusion.
Following some busy years conducting dawn raids in various industries, the Federal Cartel Authority (FCA) recently published guidelines regarding such searches. Although the guidelines contain no big surprises, as they largely reflect the law and the FCA's earlier practice, there are some interesting points – particularly as some of the Austrian legal regime deviates from European law and practice.
At present, the Austrian merger control regime is based on a system of turnover thresholds. Following German legislation and anticipating possible new legislation by the European Union, the new Cartel Act introduces a consideration threshold for which, at least in Europe, there is no practical experience. Due to vague criteria in the law, it is expected that more transactions than envisioned by the legislature will be caught by the new regime or at least notified by careful parties and lawyers.
Although implementation of the EU Cartel Damages Directive in Austria was somewhat delayed, the Council of Ministers recently approved the bill to amend the Cartel Act and the Competition Act. The law will significantly amend Austrian cartel law, primarily facilitating private enforcement of cartel damages for consumers and enterprises alike. While Austrian law has included some of these elements since 2013, the implementation of the directive goes far beyond those implemented.
The Supreme Court recently considered whether a special concentration had to be assessed in accordance with the EU Merger Regulation or national cartel law. The Supreme Court ultimately submitted this question to the European Court of Justice for a preliminary ruling. While an answer to this question is necessary, the interest in quick merger proceedings must also be considered.
After the Supreme Court imposed a record €30 million fine on grocery chain SPAR Österreichische Warenhandels-AG and its subsidiaries, a draft to amend the Cartel Act 2005 was circulated. In addition to implementing EU Directive 2014/104/EC, the draft amends existing limitation periods, reiterates the joint and several liability of cartel members and further promotes Austria's leniency programme regarding the fine procedure.
Triggered by a complaint from radio station Kronehit, the Federal Competition Authority (FCA) looked into the media cooperation practices between radio broadcasters and concert and festival organisers. The investigation led to a set of FCA guidelines for media cooperation which will address the prevalent inequality between Austrian public broadcaster radio stations and private radio stations as media partners of concert and festival organisers.
The Cartel Act contains antitrust regulations on cartels, merger control and abuses of dominant market positions. It sets out the rules on what constitutes a cartel, the definition of vertical restrictions, joint dominance and mergers and establishes the conditions for when pre-merger control applies.
Following a dawn raid of the business premises of one of Austria's biggest food retailers, the company challenged the Cartel Court's order to conduct the raid and the Federal Cartel Authority's actions during the raid – in particular, due to the use of espionage software. The Supreme Administrative Court dismissed the applicant's appeal and ruled that the use of forensic software to access electronic data during a raid is unquestionably legal.
The Higher Regional Court, acting as the Cartel Court, recently imposed a fine of approximately €17.5 million on 30 forwarding agencies for infringing European competition law by agreeing on tariffs regarding collective freight transport between 2002 and 2007. The Cartel Court's decision preceded significant discussions among competition law specialists and several other Austrian and EU decisions clarifying important questions of law.
Following criticisms of an apparent lack of information and transparency in Federal Competition Authority (FCA) settlement proceedings, the FCA has issued guidelines on its settlement policy, elaborating on its legal position and practice. While it is clear that settlements provide some legal certainty for undertakings, they must be treated with caution, as settlement decisions include a binding sentence of guilt.
In the course of recent investigations the Federal Competition Authority (FCA) has found prohibited agreements between suppliers and their respective distributors, primarily in the field of consumer prices. In the wake of these findings, the FCA published its final statement on vertical restrictions – particularly resale price maintenance. The statement serves as a guide to identifying and avoiding infringements of the cartel ban.
The Supreme Court recently ruled on the scope of the Cartel Court's obligation to publish its fine decisions and highlighted the importance of transparency as the main goal of Section 37 of the Cartel Act. In its decision, the court made clear that the purpose of Section 37 is to present market participants with clear information about cases so that they may evaluate damages claims.
The Supreme Court (acting as the Higher Cartel Court) recently decided once again on the investigatory powers of the Federal Cartel Authority (FCA) with regard to house searches. The case focused on suspicions by the FCA of participation in anti-competitive agreements and/or concerted practices with regard to vertical price agreements between the applicants and retailers of daily consumer goods, among other things.
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.