AUSTRIA: An Introduction to Competition/European Law

Following significant changes to Austrian competition law in the past few years, no immediate legislative changes were made to the Austrian Cartel Act or the Competition Act in 2023. However, important changes at an EU level (eg, the introduction of the new Vertical Block Exemption Regulation and the Vertical and Horizontal Guidelines), as well as amendments to 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, with a wave of cartel fines imposed on members of a construction cartel in 2023 (follow-on litigation has already started); another focus of the authorities has been sector inquiries (for example car-charging and food retail).

Changes to Legislation 

There were not any significant amendments to the Austrian Cartel Act or the Competition Act in 2023, except for the designation of the Austrian Competition Authority as the regulatory authority for interchange fees for card-based payment transactions. 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. Consequently, 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 to protect small and medium-sized suppliers from grossly unfair practices. Following an inquiry into the food retail sector, the FCA announced further oversight and possible enforcement of the UTP Directive.

Besides the above-mentioned revision of the Leniency Handbook, the FCA has been quite active in implementing new or updating already existing soft law. After publishing guidelines on dawn raids, sustainability agreements and fair business conduct in the supply chain in 2022, the FCA published a guideline on pre-notification procedures in merger control, a focus paper on price comparison platforms, and revised its position on settlements in 2023.

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 co-operate 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.

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. It seems that 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 at an EU level, and changes to Austrian competition law, we expect that the 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 or litigation. Advice on competition law matters will increasingly need to take into account the threat of private enforcement claims as they may well exceed imposed fines.