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CPC fines A1 Bulgaria for cancelling agreement
Advokatsko druzhestvo Stoyanov & Tsekova in cooperation with Schoenherr
  • Bulgaria
  • 13 December 2018

The Commission for the Protection of Competition (CPC) recently imposed a Lev840,340 fine on A1 Bulgaria for cancelling a partnership agreement with its main commercial representative, Handy-Tel EOOD. The CPC held that the cancellation had effectively violated Article 37a(1) of the Protection of Competition Act, which prohibits the abuse of a dominant position when contracting.

The devil is in the details: transaction value draft guidelines
Preslmayr Attorneys at Law
  • Austria
  • 24 May 2018

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.

A blessing in disguise?
Preslmayr Attorneys at Law
  • Austria
  • 01 February 2018

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.

Fixing the WhatsApp gap?
Preslmayr Attorneys at Law
  • Austria
  • 13 July 2017

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.

Restriction of parallel imports – a new sheriff in town?
  • Switzerland
  • 18 May 2017

A recent Federal Court judgment regarding parallel imports between Swiss company Gaba and Austrian company Gebro deals with the core principles of the competition law assessment of licence and distribution agreements. It is a paramount judgment with significant implications, given that it changes the practice and tightens the competition law assessment of licence and distribution agreements.

Deadline (narrowly) missed!
Preslmayr Attorneys at Law
  • Austria
  • 06 April 2017

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.

Dangerous to know: cartel liability just got wider
Baker McKenzie CVBA/SCRL
  • European Union
  • 06 April 2017

A recent European Court of Justice decision confirms that businesses can be liable for cartelising products that they do not even have in their portfolio and in jurisdictions in which they are not active, provided that there is an anti-competitive agreement with an overall plan covering multiple products and geographies and that the undertaking participated directly in the execution of some parts of the agreement and was aware of the other parts of the agreement.

Landmark decision: stricter rules for licence and distribution agreements
  • Switzerland
  • 25 August 2016

The Federal Supreme Court recently ruled on a Competition Commission (ComCo) decision regarding a production and distribution licence agreement. ComCo concluded that the licence agreement prohibited the export of products into Switzerland. Once the written conclusions of the judgment become available, it may be more difficult for companies to argue that certain agreements do not infringe competition law.

Retailer settlement and amendments to Cartel Act
Preslmayr Attorneys at Law
  • Austria
  • 15 September 2016

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.

Overview (December 2015)
Preslmayr Attorneys at Law
  • Austria
  • 17 December 2015

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.

Media cooperation in radio market
Preslmayr Attorneys at Law
  • Austria
  • 21 April 2016

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.

Agency clears AGRANA and RWA merger
Schoenherr
  • Croatia
  • 22 December 2011

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.

Federal Administrative Tribunal confirms fines for hindrance to parallel imports
  • Switzerland
  • 15 May 2014

In a recent decision, the Federal Administrative Tribunal confirmed fines imposed by the Federal Competition Commission on Gaba International AG and its Austrian partner Gebro Pharma GmbH for hindrance to parallel imports of Elmex Red into Switzerland. The tribunal found that an agreement by which Gebro undertook not to export Gaba's products outside Austria constituted an appreciable restriction on competition.

Forwarding agencies' cartel and its consequences
Preslmayr Attorneys at Law
  • Austria
  • 23 April 2015

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.

Warning: non-notification may become expensive
Preslmayr Attorneys at Law
  • Austria
  • 17 October 2013

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.

New settlement policy
Preslmayr Attorneys at Law
  • Austria
  • 19 February 2015

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.

Intra-group liability for fines – court rules on joint and several liability
  • Germany
  • 05 March 2015

The Federal Court of Justice recently addressed the issue of responsibility for a cartel fine imposed on several companies. According to the court, in order to establish internal liability it must first be assessed whether there is a contractual arrangement which stipulates the rules of compensation. The court went on to specify the criteria relevant to the proportion of internal compensation between joint and several debtors.

Error in law cannot protect against competition fine
Preslmayr Attorneys at Law
  • Austria
  • 25 July 2013

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.

New rules of the game for leniency applicants
Preslmayr Attorneys at Law
  • Austria
  • 09 May 2013

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.

Revised criminal codes bring new requirements for Competition Council raids
  • Romania
  • 17 April 2014

The recent entry into force of the new Criminal Code and Criminal Procedure Code has brought a number of changes to the Competition Law, one of the most significant of which pertains to Competition Council dawn raids. Although the amendments should be seen as a step in the right direction, especially in terms of compliance with EU human rights law, further steps still need to be taken.