Changes to the law
Further issues

After a lengthy internal discussion process, on January 24 2012 the Ministry of Justice and the Ministry for Economic Affairs publicly presented a draft bill for changes to the competition law in Austria. National stakeholders have been invited to comment by February 29 2012. The proposed changes reflect lengthy discussion and may also have been influenced by recent competition cases, both pending and concluded.

Changes to the law

In addition to a number of minor and formal changes, the draft bill introduces the following amendments to the law.

Austrian de minimis rule
Previously, any cartel for which the members had a joint market share of less than 5% of the national market (or less than 25% of a local market) were exempted from the cartel prohibition. This has now been modified to 10% if they are competitors (ie, have a horizontal connection) or 15% if they are non-competitors (ie, have a vertical connection) for the relevant market. However, in contrast to the regime in place at present, any agreement on sales prices, limitation of production or distribution or allocation of market will be exempted from this de minimis rule.

Dominant market position
In line with the German example, the rules on defining a dominant market position will be supplemented by adding a definition for certain forms of joint dominance.

Merger control
It will now be possible to 'stop the clock' on merger control, by way of a motion by the applicant. This should enable the applicant to avoid a full Phase II investigation request from the Federal Cartel Authority (FCA) or the federal cartel prosecutor where the four-week Phase I examination period has been found to be too short to clarify open issues.

Antitrust fine proceedings
The legal basis for charging leniency applicants in antitrust fine proceedings - without fining it - will be established. The criteria for measuring such fines have been amended to reflect more closely the European Commission's fine policy. The FCA will now be obliged to formulate its complaint for a fine before the Cartel Court in greater detail, but it is still unclear whether a specific fine must be requested.

Publication of decisions
Final decisions of the Cartel Court on the prohibition of infringements, the establishment of infringements and the adjudication of fines - both on mergers and on measures imposed after a merger has been cleared - must be published in an appropriate publication, including the names of the parties and the essential contents of the decision.

Past infringements
Requests for Cartel Court decisions establishing past infringements as a preparation for civil damage proceedings will explicitly be admissible.

Specific rules for damage claims
Again following the German example, specific rules for damage claims following up on fine decisions will be enacted, including:

  • the possibility of interrupting such civil proceedings for the duration of competition proceedings (in Austria or with the European Union);
  • the explicit regulation that the civil court is bound to a certain extent to the decision of competition authorities; and
  • a delay in the start of limitation periods for damage claims until six months after a decision establishing the violation of Competition Law has become final.

Following the financial crisis, fees in competition proceedings at the Cartel Court have been increased.

Further issues

Under the proposed changes, leniency requests may lead to full immunity even after the FCA has gained knowledge of an infringement - information and evidence can be presented that will enable the FCA to file a complaint with the Cartel Court.

The FCA will have the right to interview officers and employees of investigated undertakings upon inspection. The FCA will be authorised to order to issue decisions in response to information requests and to impose fines in case where such decisions are not (or are insufficiently) adhered to. Appeals against such decisions, without suspensive effect, can be made before an independent administrative tribunal and then before the federal administrative court.

For house searches ('dawn raids') yet to be decided on by the Cartel Court, the FCA will be able to seal rooms and evidence and confiscate business documents. These rights of the FCA exceed those of the European Commission and may have a considerable impact on the business investigated.

Finally, the investigation of electronic media is explicitly regulated.


It is currently provided that the changes to the Cartel Act shall mainly enter into force on July 1 2012. The changes to the de minimis rule and the provisions affecting civil damage claims following up on decisions of the competition authorities will apply only to cartels and infringements that occurr after June 30 2012.

Specific rules relating to the abuse of a dominant market position and to pricing are imposed on entities offering electricity or natural gas (ie, energy providers) by including a new provision into the Federal Act to Improve Local Supply and Conditions of Competition.

While fundamental changes to this draft bill are unlikely to occur, it remains to be seen how these amendments - if enacted - will affect administration, jurisdiction and advocacy for competition law in Austria.

For further information on this topic please contact Dieter Hauck or Esther Hold at Preslmayr Attorneys at Law by telephone (+43 1 533 16 95), fax (+43 1 535 56 86) or email ([email protected] or [email protected]).