The Austrian NCA received a complaint by a public hospital operator with respect to difficulties when procuring surgical instruments from distributors abroad through an EU-wide public procurement procedure. The alleged reasons for the difficulties were exclusive distribution rights granted to an Austrian distributor of medicinal devices by the supplier of the products concerned.

The Austrian NCA took the position that the participation in a public procurement procedure amounts to passive sales, which must not be subject to restrictions in distribution agreements. In response to the concerns raised by the Austrian NCA, the parties have offered commitments that would eliminate the concerns identified and clarify distribution agreements in accordance with EU competition law.

On 22 May 2018, the Austrian NCA therefore requested the Austrian cartel court to make the commitments binding on the undertakings by decision. Such a decision would make no determination as to the existence of a competition law infringement.