While Austria has had anti-trust legislation since 1951, its regime is generally considered to be “younger” than most of its Western European counterparts. Indeed, the change from the post-war belief that cartels were often justifiable on industrial policy grounds to a modern anti-trust system was more gradual in Austria than in many Western European countries. Since Austria’s accession to the EU in 1995, both legislation and enforcement of Austrian competition law have been mod-ernised, and Austria today is squarely in the centre of Europe also with regard to competition law.
The EU (and earlier the EEA) accession have not only significantly impacted competition law in the narrow sense but also state aid law, which may likewise be directly enforced by the European Commission. Further, it brought about significant changes in the area of public and utilities pro-curement. While the impact arguably is strongest in the realm of competition law, there is virtually no area of Austrian law, which has not been affected, in one way or another, by EU law and, in par-ticular, the four freedoms (free movement of goods, capital, services, and people) which make up the internal market.
Focusing on competition law in the narrow sense, since 2002, the Austrian (public) enforcement framework provides for three main players. The independent Federal Competition Authority (FCA) is Austria’s investigative agency. Its main responsibilities are the investigation of restrictions of competition, as well as the Phase 1 review of mergers. Unlike most European competition authori-ties, the FCA does not have decision-making power: all decisions, both on violations of the behav-ioural antitrust rules and on mergers (in Phase 2 proceedings) are made by the Cartel Court (CC), a specialised division of the Vienna Court of Appeals. While the CC may be seized of disputes by private parties, applications for fines as well as applications for Phase 2 reviews of mergers may only be submitted by the FCA and the Federal Antitrust Prosecutor (FAP). The FAP, who reports to the Minister of Justice, is charged with maintaining the public interest in competition enforcement.
Given the rather low filing thresholds and the wide definition of what constitutes a merger (poten-tially) affecting the Austrian market, a lot of the cases dealt with by the FCA and the FAP are mer-ger control related. However, as was the case elsewhere, merger filing numbers took a serious hit during the 2008 economic crisis, and continue to be significantly lower than pre-crisis levels. Fur-ther, the introduction, in 2006, of a leniency programme significantly transformed Austrian competi-tion enforcement. Since the adoption of the programme, the FCA has brought a number of actions alleging the existence of cartels e.g. in the elevator and escalators, chemicals and freight forward-ers industries. The highest fines imposed so far, in the Austrian elevators and escalators case, amounted to EUR 75.4 million.
While Austrian law provides for rather strict presumptions of dominance, dominance cases have traditionally played a less prominent role in the FCA’s and FCP’s enforcement practice. This also is in line with the situation at EU level, where merger and cartel work clearly make up the lion’s share of the European Commission’s work. Dominance issues however continue to be pleaded in litigation between private parties before the CC and the Austrian civil courts (as one form of private en-forcement beyond mere damage claims), and there are a number of interfaces between general competition law and the regulatory regimes for industries such as energy and telecoms.
In addition to its case work, the FCA also has the power to conduct general market investigations. The main thrust of the FCA’s investigations so far has been on the energy sector, where the FCA examined the Austrian oil and gas markets. Furthermore, the FCA also investigated the Austrian general retailing market, with ambivalent results. More recently, the FCA has devoted considerable energy to the car fuel market, and regularly publishes a survey of fuel prices in Austria.
In line with the European trend, Austria recently has also seen a rise in private damage claims fol-lowing on from fine decisions; first, in cases concerning driving schools and, on a far bigger scale, after the CC’s decision in the elevators and escalators case. While the latter cases are still pending and results uncertain, most practitioners expect the trend towards private damage litigation to con-tinue.
At the same time, recent years have seen some debate on how to further boost administrative en-forcement. While some members of the Austrian antitrust community support a system change to the EU model, with the FCA being granted decision-making rights, notably the Federal Chambers of Commerce and Labour have come out against such a change. The chambers’– who traditionally play an important role in Austrian law-making as well as in competition enforcement (today, inter alia, as lay judges at the CC) – recent report on Austrian competition policy rather supports a con-tinuation of the present system, with the FCA being granted additional resources to meet its inves-tigative goals.
The report has triggered a draft amendment to the Austrian anti-trust regime. While it is not a real overhaul of the rules in place, there are several changes expected to become law still this year. For example, the de-minimis rules, which currently also exempt hard-core cartels, would, according to the draft amendment, only apply to less severe infringements. In general, most practitioners expect the demand for competition law advice to continue to increase. In addition to the above developments, this also follows from the international trend of companies strengthening their compliance organisations. While driven not only by competition law risks, this trend is expected to affect the nature of legal advice, with clients seeking increasingly sophisticated solutions to difficult and novel questions.