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

The leniency program is regulated by Section 11b of Competition Act. The leniency program allows immunity from fines for an undertaking that entered into a cartel agreement subject to four conditions: the undertaking seeking immunity must end its participation in the cartel - KaWeRÄG 2021 provides that the undertaking may now pursue the infringement if the Federal Competition Authority is of the o …

Leniency

The Cartel Court can order the undertakings to bring an immediate end to the infringement.

Cease and desist orders

Illegally implementing a cartel is punishable by a fine of up to 10% of the aggregate turnover of the respective undertaking achieved in the last business year (Section 29 of the Cartel Act). Abusing a dominant position or failing to respect an order regarding abuse of a dominant position, or contravening Articles 101(1) or 102 TFEU is punishable by fines of the same amount.

Furthermore, the Cartel Court may impose a fine amounting to 1% of the aggregate turnover of the respective undertakings achieved in the last business year if (i) an undertaking fails to comply with a decision of the Cartel Court pursuant to Section 19(3), a cease-and-desist order directed against an infringement of Articles 101 or 102 TFEU pursuant to Section 26 or such interim injunction pursuant to Section 48 (Section 29(2)a)) ; (ii) provides incorrect of misleading information in the notification of a concentration under Section 9 (Section 29(2)b)) ; or (iii) does not tolerate the official acts of the Federal Competition Authority provided for in the context of a house search directed against an infringement of Articles 101 or 102 TFEU, or damages or detaches a seal affixed by the said authority in the process. 

Since KaWeRÄG 2021, Section 29(3) now clearly states that fines may also be imposed on parent companies which belong to the same economic unit as the undertaking which took part in the infringement.

In imposing fines, the Cartel Court is required by Section 30 of the Cartel Act to consider the seriousness and duration of the violation, the illegal profits made, the degree of fault, and the economic capacity of the undertaking involved. To align Austrian law with EU competition rules, especially the Commission's guidelines on fines, the 2012 reform supplemented Section 30 by introducing aggravating and mitigating circumstances. Aggravating circumstances include being guilty of repeated infringements or being the instigator or leader of the cartel. Mitigating circumstances include having had a passive role in the cartel, having terminated the infringement or cooperated in the disclosure of the infringement. 

With regard to associations of undertakings, KaWeRÄG 2021 introduced several amendments, such as:

- In assessing fines against an association of undertakings whose infringement is connect with the activities of its members, the sum of the total turnover of the members that were active in the market that was infringed will be decisive. The liability of an individual member cannot exceed 10% of its total worldwide turnover (Section 31(1)),

- If a fine is imposed on an association of undertakings for an infringement Articles 101 or 102 TFEU, the association of undertakings must ask its members for contributions to cover the fine if this is necessary for its full payment (Section 31(2)),

- If the fine cannot be fully collected in this way, the Cartel Court, upon request of an office party, will order the undertakings whose representatives were members of the decision-making bodies of the association of undertakings to pay the remaining part of the fine imposed (Section 31(3)),

- In the event that the fine is still not fully paid, the Cartel Court, upon request of an office party, will order members of the association of undertakings who were active in the infriged market to pay the remaining part of the fine (Section 31(4)).

However, undertakings which prove that they did not carry out the infringement committed by the association of undertakings, and that they were unaware of the said infringement or actively distanced themselves from it prior to the initiation of the procedure, may not be obliged under subsection 3 and 4 (Section 31(5)).

The 2017 amendment provides that each year, a portion of EUR 1.5 million of the fines collected must be awarded to the functioning of the Federal Competition Authority (Section 32).

Under the Cartel Act 2005, the Cartel Court could also force the undertaking(s) in question to publish the decision imposing fines at its own expense. Since the 2012 reform, Section 37 of the Cartel Act requires the Cartel Court to publish any final decision on the termination of an infringement, a finding of infringement, or the imposition of a fine. The publication must state the names of the parties and the main content of the decision, including any penalties imposed. The Federal Competition Authority and the Federal Competition Prosecutor are entitled to apply to the Cartel Court for an order imposing fines, subject to a statute of limitations period of five years. Under the 2017 amendment, the limitation period may be suspended during the FCA's investigation against at least one of the parties to the infringement. After the interruption, the limitation period starts anew (Section 33(1)). Furthermore, the limitation period will be suspended for the duration of proceedings before a competition authority of an EU Member State, EEA Contracting State, or the Commission (Section 33(2)). In any case, an absolute ten-year limitation is however introduced, running from the end of the infringement (Section 33(1) and Section 33(2) of the Cartel Act).

KaWeRÄG 2021 also implemented the ECN+ Directive provisions on the cooperation between national competition authorities in order to fasten competition law enforcement (Section 35a) to 35e)).

Fines

The leniency program is regulated by Section 11b of Competition Act. The leniency program allows immunity from fines for an undertaking that entered into a cartel agreement subject to four conditions: the undertaking seeking immunity must end its participation in the cartel - KaWeRÄG 2021 provides that the undertaking may now pursue the infringement if the Federal Competition Authority is of the opinion that the continuation of the infringement is necessary in order to preserve the integrity of its investigation -; it must inform the FCA of the infringement before the FCA has knowledge about it; it must cooperate genuinely, fully, on a continuous basis and expeditiously, from the time it submits its application throughout the administrative procedure; it must not have coerced any other party into the cartel. 

If an undertaking fails to be either the first to submit information or the first to submit any additional information about the infringement, but nevertheless fulfils the criteria set out in subparagraphs 1, 2 and 4 of Section 11b(1), the FCA may request the imposition of a reduced fine (Section 11b(1)).

Furthermore, previously if the FCA had already been informed of the cartel, the undertaking could still be eligible for a reduced fine if all other conditions were fulfilled. The 2012 reform has amended Section 11 to provide that full immunity may be granted to an undertaking even where the FCA already has information from other sources, if the information submitted by the undertaking at issue allows the FCA to apply for a search warrant before the Cartel Court. Reduced fines may also be inflicted to undertakings providing information or evidence which bring a significant added-value to the information already in the FCA's possession. The FCA issued guidelines for the implementation of the leniency program in March 2013, which it revised in February 2018 (Leniency Handbook).

In addition to the leniency program, the 2017 amendment allowed the FCA to set up an internet-based information system, which can be used by whistleblowers to provide anonymous information on possible infringements of competition law (Section 11b(6)).

In January 2022, the FCA published guidelines on the reduction of fines under the Austrian leniency program, which applies to undertakings that do not qualify for full immunity. The guidelines specify that the first applicant eligible for leniency may receive a fine reduction of 30-50%, the second applicant a reduction of 20-30%, and any subsequent applicant a reduction of up to 20%. However, the FCA may grant fine reductions that exceed these ranges if an undertaking discloses information or evidence with “exceptionally significant” added value. In any event, the FCA determines the fine reduction based on all relevant circumstances on a case-by-case basis. 

Global Competition Law

18. Leniency

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

Les notions juridiques connexes

18. Leniency

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