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

Holding a dominant position is not prohibited per se. Section 5(1) includes a non-exhaustive list of conduct that constitutes an abuse of dominance, such as imposing unreasonable prices or business terms, restricting sales to the detriment of consumers, and other conduct paralleling the examples in Article  102 TFEU. Resale below cost was added to the list of abusive practices in the 1999 amendmen …

Abuse

In considering whether an undertaking is dominant on the relevant market, the authorities look to see if it is exposed to significant competition from other undertakings and whether it has a superior market position taking account of factors such as financial strength, relations to other undertakings, access to supply and sales markets and barriers to accessing the market (Section 4(1) of the Cartel Act). KaWeRÄG 2021 added that other factors such as the importance of intermediary services for the access of other undertakings to purchases and sales markets, the access to competitively relevant data, the benefit of network effects as well as circumstances limiting market access for other undertakings may also be considered when assessing market dominance (Section 4(1)). 

Furthermore, in order to better reflect the special features of the digital market, Section 4a of the Cartel Act now provides that an undertaking that is active as an intermediary on a multi-sided digital market is deemed to have market dominance if the purchasers of its intermediary services are dependent on the establishment of a business relationship in order to avoid serious economic disadvantages.

Market dominance may also be established where an undertaking has a superior market position in relation to its purchasers or suppliers. Such a position exists in particular if the latter are dependent on the maintaining of the business relationship in order to avoid serious economic disadvantages.

The Cartel Act describes three situations in which market dominance is presumed and the burden of proof thus shifts to the undertaking to demonstrate that it is not dominant (Section 4(2) of the Cartel Act). First, an undertaking is presumed to be dominant where it has a market share of at least 30%. Alternatively, there is a rebuttable presumption that an undertaking is dominant where it has a market share of more than 5% and it is exposed to competition by not more than two competitors. Dominance is also presumed where an undertaking has a market share of more than 5% and is one of the four largest undertakings that together have a share of the market of at least 80%.

The 2012 reform introduced the concept of collective dominance into Austrian law (Section 4(2a) of the Cartel Act). Henceforth, a presumption of collective dominance applies if up to three undertakings hold at least 50% of a market or if up to five undertakings hold at least two thirds of that market.

Dominant position

Holding a dominant position is not prohibited per se. Section 5(1) includes a non-exhaustive list of conduct that constitutes an abuse of dominance, such as imposing unreasonable prices or business terms, restricting sales to the detriment of consumers, and other conduct paralleling the examples in Article  102 TFEU. Resale below cost was added to the list of abusive practices in the 1999 amendments to the previous Cartel Act. In cases involving below-cost selling, the burden of proof is on the dominant undertaking to demonstrate either that the sale was not below cost or that it was objectively justified.

Global Competition Law

6. Abuse

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Les notions juridiques connexes

6. Abuse

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Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise