AUSTRIA: An Introduction to Competition/European Law

Following significant changes to Austrian competition law in the past years, no immediate legislative changes have been made to the Austrian Cartel Act or the Competition Act in 2022. However, important changes on EU level (eg, the introduction of the new block exemption regulation) as well as amendments in the Austrian enforcement practice (especially as regards the leniency programme) have already had an impact on Austrian competition law practice and are expected to have a strong impact in the (immediate) future. Competition authorities remain active as ever – in 2022, besides its casework, focusing especially on sector inquiries – and private enforcement cases are increasing.

Changes to Legislation 

There have not been any amendments to the Austrian Cartel Act or the Competition Act in 2022. However, at the end of 2021, a Regulation on the Application of the Leniency Programme (Leniency Regulation) entered into force, comprising detailed information on the application of the leniency programme in Austria. As a consequence, the Austrian Federal Competition Authority (FCA) issued a new Leniency Handbook in July 2022 aligned with the principles of the new Leniency Regulation.

On 1 January 2022 an amendment to the Act on the Improvement of Competitive Conditions – traditionally complementing the core area of competition and antitrust law in Austria – entered into force, implementing the EU’s UTP Directive. The UTP Directive as well as its implementation aims for the protection of small and medium-sized suppliers from grossly unfair practices. Correspondingly, a new “Fairness Office” was set up at the Ministry of Agriculture, acting as an autonomous and independent first point of contact.

Besides the above-mentioned revision of the Leniency Handbook, the FCA has been quite active in implementing new or updating already existing soft law. In July 2022 the FCA published a revised Guideline on Dawn Raids, especially considering the implementation of the ECN+ Directive into Austrian law. In September 2022 the FCA published Guidelines on Sustainability Agreements for companies aiming to give (more) clarity on the assessment of sustainability agreements. Finally, in October 2022 the FCA presented an updated guidance for fair conduct in business in order to ensure fairness in the supply chain, reflecting (also) the changes following the implementation of the UTP Directive.

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 several companies active in the construction sector. Furthermore, for the first time in the FCA’s history, the FCA applied for a review of the fine imposed on a leniency applicant accusing it of infringing its obligation to cooperate with the FCA truthfully, fully, and expeditiously.

In addition to its casework, the FCA also has the power to conduct general market investigations. In 2022 the FCA made use of this competence and initiated such sector inquiries, especially following the current economic environment of major price increases in various sectors and corresponding political pressure. A sector inquiry in the fuel sector was initiated in April 2022. The FCA issued its final report in July/August coming to the conclusion that there is no direct evidence of cartels or the abuse of market power. Furthermore, a sector inquiry in the food sector was initiated in October 2022 aiming to analyse the situation of rising prices, supply chain bottlenecks and increasing inflation in the food market from a competition law perspective. Finally, the FCA published its results on the sector inquiry into the electric mobility market in November 2022.

It must also be mentioned that one of the major changes of the 2021 amendment to the Austrian Cartel Act – the introduction of a second domestic turnover threshold in merger control – has shown its effect as anticipated and reduced the number of merger filings significantly. As expected, it seems the FCA has used its freed resources for other enforcement measures, eg, (as already mentioned) in conducting several sector inquiries but also – following reduced dawn raid activities during the pandemic years – conducting dawn raids in the wood pellets market.

Although dominance cases have played a less prominent role so far, the European Commission’s taking on 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 from 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).

Private Enforcement 

In line with the European trend, Austria has also seen a rise in private damage 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 ongoing. Most practitioners expect that civil courts will continue to handle these cases for many more years to come with private damage litigation continuing to grow across Europe in general.

General Outlook 

Especially in light of the recently introduced revised block exemption regulations on 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 also exceed imposed fines.