AUSTRIA: An Introduction to Competition/European Law

Austria: Competition/European Law 

Austrian competition law has seen significant changes in the past years with its most recent amendment entering into force in September 2021. These developments reflect the EU’s current policy goals and it cannot be excluded that these changes and their enforcement will also influence other Member States’ legislation. Meanwhile competition authorities remain as active as ever and private enforcement cases are increasing. In addition, Austrian competition law practice will be strongly impacted by the expected competition law amendments at EU level, such as the new block exemption regulations.

Changes to legislation 

In September 2021 the latest amendment to the Austrian Cartel Act entered into force.

One of the major changes it introduced is a second domestic turnover threshold, which was much anticipated in the past. Given the rather low filing thresholds and the wide definition of what constitutes a merger potentially affecting the Austrian market, this second threshold is expected to reduce the number of merger filings, thus potentially relieving clients from their notification obligation in Austria and freeing up capacities of the Austrian competition authorities (the Federal Competition Authority and the Federal Antitrust Attorney). In order to reflect the new threshold, the Federal Competition Authority (FCA) also adapted its Guidance on Transaction Value Thresholds (a joint guidance with the German Bundeskartellamt) accordingly.

In addition, the 2021 amendment brought on an innovation as it is the first national legislative act in the field of competition law that explicitly includes sustainability considerations when assessing whether a cartel may be exempted from the prohibition under Article 2 (a provision which is naturally modelled on Article 101 TFEU). Given the principle of primacy of EU competition law when trade between Member States may be affected, it remains to be seen what impact this provision will have in practice. In light of the increased awareness for sustainability concerns worldwide, however, it cannot be excluded that this provision will also influence national competition law enforcement in other Member States.

Public enforcement 

One key area of activity of the FCA in recent years has been the investigation of retail price maintenance (including restrictions of online sales) and, increasingly, cartels involving bid-rigging. Especially the latter resulted, inter alia, in fines in the higher double-digit millions for companies active in the construction sector.

Although dominance cases have played a less prominent role so far, the European Commission’s taking on of tech giants and big data in recent years has also had an impact on Austrian public enforcement practice. For example, the FCA launched investigations against Amazon on suspicion of abuse of a dominant position on its marketplace following complaints of retailers. Abuse of dominance claims also continue to be raised in litigation between private parties before the Cartel Court and the Austrian civil courts as well as arbitral tribunals (including private enforcement and damage claims).

In addition to its case work, the FCA also has the power to conduct general market investigations. The main areas of interest to the FCA in the last years have been the taxis and private hire car market as well as the health and supply of medicines sector. Most recently, the FCA launched an inquiry into the Austrian fuel market.

Private enforcement 

In line with the European trend, Austria has also seen a rise in private damages claims in the past. Prominent new cases include follow-on damages claims after the trucks cartel, while proceedings following the elevators and escalators cartel are also still on-going. Most practitioners expect that civil courts will continue to handle these cases for many more years to come, with private damages litigation continuing to grow across Europe in general.

General outlook 

Especially in light of the upcoming amendments to the block exemption regulations at EU level and changes to Austrian competition law, it can be assumed that demand for competition law advice will continue to grow. Moreover, most practitioners expect clients to require a more comprehensive approach, linking competition law issues also to other fields, such as procurement law. Advice on competition law matters will, furthermore, increasingly need to take into account the threat of private enforcement claims as they may well exceed imposed fines.