Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

Pursuant to Section 2(1) of the Cartel Act individual exemptions are possible provided four conditions are fulfilled. Those conditions are practically the same as under EU law: the contribution to improving the production or distribution of goods or to promoting technical or economic progress; a fair share for consumers of the resulting benefit; the non-imposition on the undertakings concerned of  …

Exemptions

The Cartel Act 2005 brought Austrian cartel law in line with EU law. Thus, Section 1(1) of the Cartel Act is almost identical to the prohibition provided for in Article 101 TFEU: it prohibits agreements between undertakings, decisions by associations of undertakings and concerted practices that have as their object or effect the prevention, restriction or distortion of competition. Section 1(2), which sets out examples of prohibited practices, repeats the wording of Article 101 TFEU. Section 1(4) also prohibits restrictive recommendations (Empfehlungskartelle) to observe fixed prices, price limits, calculation guidelines, trade margins or discounts, which intend to or have the effect of restricting competition. However, recommendations that are expressly non-binding and which are not enforced through economic or other pressure are not covered by the prohibition.

Agreements, decisions by associations of undertakings, concerted practices and cartel recommendations are prohibited per se by Section 1(1). Where the implementation of a restrictive agreement is prohibited, the agreement is void according to Section 1(3).

The Cartel Act 2005 initially set a de minimis exception which differed from the European rules in terms of thresholds and scope, since it covered hardcore agreements. The KaWeRÄG 2012 has brought Austrian legislation in line with EU standards. Under the current wording of Section 2 of the Cartel Act, agreements between competitors holding a combined market share not exceeding 10% and agreements between non-competitors holding a combined market share not exceeding 15% are considered de minimis (Bagatellkartelle). Furthermore, the de minimis rule no longer exempts the fixing of resale prices, the limiting of output or sales or market-sharing agreements. 

The prohibition

Pursuant to Section 2(1) of the Cartel Act individual exemptions are possible provided four conditions are fulfilled. Those conditions are practically the same as under EU law: the contribution to improving the production or distribution of goods or to promoting technical or economic progress; a fair share for consumers of the resulting benefit; the non-imposition on the undertakings concerned of restrictions which are not indispensable to the attainment of these objectives; and the agreement shall not enable the undertakings concerned to eliminate competition in respect of a substantial part of the products in question.

KaWeRÄG 2021 introduced an additional sustainability exemption, according to which cartels may be exempted if they significantly contribute to an an environmentally sustainable or climate-neutral economy (Section 2(1)). As a result of this amendment, the Federal Competition Authority adopted Sustainability Guidelines in September 2022 to help undertakings which intend to enter such agreements to better understand the applicable legal framework.

Pursuant to Section 3(1) of the Cartel Act, the Federal Minister of Justice may, in agreement with the Federal Minister of Economy, Family and Youth, adopt regulations exempting certain categories of agreements from the prohibition. The EU block exemption regulations may be used as an interpretative guide to apply the exemptions contained in Section 2 of the Act.

Global Competition Law

4. Exemptions

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Les notions juridiques connexes

4. Exemptions

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise