Complaints procedure for private parties

Is there a procedure whereby private parties can complain to the authority responsible for antitrust enforcement about alleged unlawful vertical restraints?

Yes, there are various procedures for such complaints. Private parties that can show a legal or commercial interest in the matter can apply directly to the Cartel Court for a cease-and-desist order (with a right to obtain a decision on the substance). Alternatively, they can complain directly to the FCA; however, the FCA in such cases has full discretion in whether or not to investigate the matter. Since 2018, an anonymous whistle-blowing hotline has been operated by the FCA.

Regulatory enforcement

How frequently is antitrust law applied to vertical restraints by the authority responsible for antitrust enforcement? What are the main enforcement priorities regarding vertical restraints?

The only decision-making authority as regards substantive decisions is the Austrian Cartel Court, located in Vienna. The Cartel Court has adopted an overwhelming majority of decisions with respect to vertical restraints (approximately 10 to 20 decisions per year) since the FCA made vertical restraints one of its core enforcement fields in 2012, especially in the FMCG area.

What are the consequences of an infringement of antitrust law for the validity or enforceability of a contract containing prohibited vertical restraints?

Section 1 of the Austrian Cartel Act provides for the nullity of such clauses and agreements (similar to article 101(2) TFEU); Austrian courts have so far usually ruled in favour of severability unless this undermined the purpose of the prohibition of anticompetitive agreements. The Supreme Court had to assess such a case in its judgment of 18 February 2015 (Case 22 Ob 22/14w).

May the authority responsible for antitrust enforcement directly impose penalties or must it petition another entity? What sanctions and remedies can the authorities impose? What notable sanctions or remedies have been imposed? Can any trends be identified in this regard?

The FCA and the FCP cannot impose penalties (fines) (with the exception of penalties imposed by the FCA for non-compliance of a business with its legal obligation to reply to a request for information). With respect to penalties for antitrust law infringements, the Cartel Court is the only Austrian entity authorised to impose fines (which can only be imposed upon request of the FCA or the FCP). The Cartel Court may not impose a fine that is higher than the specific amount requested by the FCA or the FCP, which is the legal basis used by the FCA for settlements. But if there is no settlement, the FCA or the FCP can simply apply for an ‘adequate fine’ to be imposed by the Cartel Court).

The Cartel Court has imposed fines in a number of vertical restraints cases since 2012. The highest fine (albeit for a mixed vertical and hub-and-spoke case) was increased by the Supreme Court in 2015 from €3 million to €30 million. There is no specific trend with respect to the amount: most fines have been in the range of between €200,000 and €3 million. Measures such as positive duties to supply on given terms cannot be imposed by the Cartel Court (unless in commitment decisions if such measures are offered by the defendant).

Investigative powers of the authority

What investigative powers does the authority responsible for antitrust enforcement have when enforcing the prohibition of vertical restraints?

The FCA has all the usual types of investigative powers of competition authorities: written requests for information, interviews and on-site inspections (dawn raids); the latter, however, must be approved and ordered by the Cartel Court.

Private enforcement

To what extent is private enforcement possible? Can non-parties to agreements containing vertical restraints obtain declaratory judgments or injunctions and bring damages claims? Can the parties to agreements themselves bring damages claims? What remedies are available? How long should a company expect a private enforcement action to take?

Private enforcement is highly developed in Austrian law and practice. Private parties that can show a legal or commercial interest in the matter (even if they are non-parties to the vertical restraints agreements) can apply directly to the Cartel Court for a cease-and-desist order (also in combination with an interim injunction) or a declaratory judgment (with a right to obtain a decision on the substance). They can also apply for damage claims to the civil courts (commercial courts). A party to an agreement can also bring all these claims.

The duration of proceedings obviously depends on the individual case (evidence available, the need for the court to obtain an expert opinion, etc), but, in general, private enforcement before the Cartel Court will usually last approximately two years (or six months for interim injunctions). Appeal proceedings to the Supreme Court take approximately one year.

The successful party can recover its legal costs in proceedings before the civil courts (only in the amount foreseen in the official tariff) but not in proceedings before the Cartel Court (unless the losing party has grossly abused the proceedings without any perspective to win the case – this has, however, not been the case in recent years). An important cost factor for court fees may be the costs of economic expert opinions, which have to be borne by the losing party. The court may also divide the costs between the parties in the case of a partial victory.