AUSTRIA: An Introduction to Competition/European Law

Following significant changes to Austrian competition law in the last few years, no substantive legislative changes have been made to the Austrian Cartel Act in 2024, while the Competition Act experienced a minor amendment. To stimulate competition the abuse of dominance rules were tightened in the energy sector through the introduction of a new federal law targeting dominant energy suppliers in July 2024. 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 as active as ever with a wave of cartel fines imposed on members of the construction cartel in 2024 (follow-on litigation has already started as well). The authorities have also been focusing on sector inquiries, especially concerning energy and food retail.

Changes to Legislation

There have not been any significant amendments to the Austrian Cartel Act in 2024. The Competition Act has been amended to the extent that the Federal Competition Authority (FCA) can investigate economic sectors if there is a suspicion that the obligation to pass on levy reductions pursuant to Section 7 PreisG 1992 is being breached. The Austrian legislator has also passed a new law in an attempt to stimulate competition in the energy market. The new law prohibits dominant energy companies from abusing their market position by charging inter alia “less favourable” prices than other energy companies. The impact of this new piece of regulation is being closely scrutinised by the energy sector and its effects in practice remain to be seen. The law is limited in time and will be in force until 2027. The most important amendments to Austrian competition regulation took place two years ago. At the end of 2021, a Regulation on the Application of the Leniency Programme (Leniency Regulation), comprising detailed information on the application of the leniency programme in Austria entered into force. Consequently, the 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 aim to protect small and medium-sized suppliers from grossly unfair practices. Following a sector inquiry into the food retail sector, the FCA announced further oversight and possible enforcement of the UTP Directive.

Besides the 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. The latter especially 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.

The FCA (and the authority responsible for the Austrian energy market, Energie-Control (E-Control or ERRA)) have also placed a special focus on energy prices and have jointly conducted sector investigations in the energy market and established a special joint task force concerning energy. As part of this task force, two reports on the energy market in Austria have now also been published.

One of the major changes in 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 pellet market.

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 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. Prominent new cases include follow-on damages claims after the trucks cartel while proceedings following the elevators and escalators cartel are 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. Private enforcement cases are also commencing in the course of the aftermath of the construction cartel.

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 to other fields, such as procurement law or litigation, or energy law. 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.