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

In proceedings before the Cartel Court or Supreme Cartel Court, cartels must have an appointed representative. The cartel representative must be resident in Austria. A simple majority of cartel members is sufficient to appoint or revoke the appointment of a representative. If the Cartel Court is not notified of the appointment of a representative within a set period, the Cartel Court will appoint  …

Proceedings before the Cartel Court

Upon application, the Cartel Court can order the undertakings involved to stop the abuse of a dominant position. The entities with a right of application include the official parties, any undertaking with a legal or economic interest, associations representing the economic interests of affected undertakings, the chambers of commerce and specified federal agencies (Federal Competition Authority and Federal Competition Prosecutor).

The 2012 reform significantly strengthened the investigation powers of the FCA. Under the previous rules, the FCA had no power to enforce its requests for information or sanction the supply of false or misleading data and had to file a complaint to the Cartel Court to this effect. The FCA may now, during on-site inspections, make binding decisions requiring information related to the goals of the investigation and ask any representative or member of staff of the undertaking for explanations on facts or documents. During inspections, the FCA is also empowered to seize documents and affix seals (Section 12). The 2017 amendment broadens the reach of the FCA's investigations: officers may now demand access to electronic files stored outside of the searched premises as long as they are accessible from those premises (Section 11a). Undertakings' compliance with such requests is secured by the possibility to apply to the Cartel Court for the imposition of periodic penalty payments of up to 5% of their average daily turnover in the previous business year. On 24 October 2017, the FCA issued guidelines on the conduct of dawn raids which provide detailed information on the rights and obligations of undertakings during the course of such inspections, especially regarding the collection of electronic data.

In October 2017, the FCA released a Guidance paper on the conduct of dawn raids, which provides useful information on the rights and obligations of undertakings during inspections.

Complaints and investigations

In proceedings before the Cartel Court or Supreme Cartel Court, cartels must have an appointed representative. The cartel representative must be resident in Austria. A simple majority of cartel members is sufficient to appoint or revoke the appointment of a representative. If the Cartel Court is not notified of the appointment of a representative within a set period, the Cartel Court will appoint one.

The information to be included in an application to the Cartel Court for authorization is set out in the Cartel Act for cartels and abuse of dominance. A hearing shall be held upon request of a party. Hearings are public, unless the public is excluded by application for the purposes of safeguarding trade or business secrets.

The Act does not establish a fixed time-limit for proceedings; rather, the presiding judge is authorized to establish a reasonable time-limit and has the power to extend time-limits already granted.

Parties may submit commitments which can terminate the proceedings.

Finally, the Cartel Court may make the settlement reached between the infringing undertaking and the Federal Competition Authority binding. Even though settlement procedures are not expressly provided for in the Cartel Act, they have undergone a significant development since 2012 which led the FCA to issue specific Guidelines in September 2014, which were then updated in November 2023. Pursuant to the Guidelines, the settlement procedures are “an appropriate and legally provided means to bring antitrust violations quickly and effectively to an end”. They are available for any competition law infringement, not only cartels. After the FCA has assessed the facts, their legal nature and disclosed the amount of the fine it intends to suggest to the Cartel Court, the undertakings may agree to settle and to admit both to the facts and the legal assessment of them. The FCA will then apply to the Cartel Court for the fine to be reduced. The Cartel Court may not impose a fine higher than that suggested by the FCA. 

Pursuant to the FCA's updated standpoint on settlements (November 2023), a fine may be reduced by a maximum of 15%.

The Cartel Court has authority to prohibit by preliminary injunction the implementation of a cartel. The issuance of a preliminary injunction can be made contingent on the provision of reasonable security in certain cases. The opposing party has an opportunity to be heard prior to the issuance of a preliminary injunction. An appeal from an injunction does not have suspensive effect, unless such a request is granted by the Cartel Court after weighing up the interests involved.

Interim relief

Contract disputes, including those involving cartel agreements, are heard in the first instance by provincial capital trial courts exercising jurisdiction in civil matters. The panel for commercial matters exercises jurisdiction in cases where the matter cannot be heard by a judge sitting alone. In Vienna, however, the Vienna Commercial Court has exclusive jurisdiction over civil disputes involving cartels. The Cartel Act provides that even where agreed in the cartel agreement that disputes arising therefrom would be subject to arbitration, nevertheless, jurisdiction always exists in the civil courts. Arbitration panels are required to notify parties of this right to have the matter heard by a civil court. Lastly, when an order of the Cartel Court has become enforceable, applicants can seek a writ of execution implementing the order from the district court where the liable party is subject to jurisdiction.

  An action for judicial assistance against boycotts seeking specific performance or a declaratory judgment may also be brought before the civil courts, where an action on the same subject has been filed within the Cartel Court. A civil suit may only be brought, however, within four weeks of the application to the Cartel Court.

Claims for damages have to be brought before the ordinary courts. The 2012 reform had already introduced provisions in order to promote such claims. The 2017 amendment, whose purpose was mainly to transpose EU Directive No 2014/104 on damages actions goes further. From now on, the claimants will benefit from the rebuttable presumption that where there is a cartel, there is harm (Section 37c(2)). The presumption only covers horizontal agreements and does not apply to abuses of dominant position. In addition, as was already the case under the 2012 reform, the ordinary courts are bound by decisions of the European Commission, of other national competition authorities or of the Cartel Court finding infringements of the competition rules (Section 37i(2)). Parties to the cartel will be held jointly and severally liable vis-a-vis the claimant except for SMEs and beneficiaries of immunity from fines, which under certain conditions, are liable only to their own direct and indirect purchasers. Although the new provisions place on the defendant the burden of proof of passing on, a presumption that the direct buyer has passed on the whole or part of the overcharge caused by the infringement is made available for the indirect purchaser in a position to establish that (i) the defendant has committed a competition law infringement ; (ii) which resulted in an overcharge for the direct buyer ; (iii) he bought the goods or services in question (Section 37f(3)). Section 37k of the Cartel Act contains the rules for disclosure of evidence. From now on, parties will be able to request access to documents from the files of the courts or even the competition authorities. However access to certain documents will only be granted after the competition proceedings are terminated whereas declarations made in the course of a leniency application or a settlement procedure will never be available. Finally, the right to claim compensation for damage caused by a breach of competition law is time-barred five years from the date on which the claimant is aware of the offender's identity, the damage, the behavior causing the damage and the fact the latter constitutes an infringement of competition rules. However, an absolute limitation of ten years is set from the date the harm occured. The new rules apply retroactively as of 27 December 2016, i.e. the deadline for transposition of Directive 2014/104.

Global Competition Law

13. Proceedings before the Cartel Court

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Les notions juridiques connexes

13. Proceedings before the Cartel Court

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

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise