Cartels 2025

Definitive global law guides offering comparative analysis from top-ranked lawyers

CHAMBERS GLOBAL PRACTICE GUIDES

Cartels 2025

Definitive global law guides offering comparative analysis from top-ranked lawyers

Contributing Editor Mark Rosman Proskauer

Global Practice Guides

Cartels Contributing Editor Mark Rosman Proskauer

2025

Chambers Global Practice Guides For more than 20 years, Chambers Global Guides have ranked lawyers and law firms across the world. Chambers now offer clients a new series of Global Practice Guides, which contain practical guidance on doing legal business in key jurisdictions. We use our knowledge of the world’s best lawyers to select leading law firms in each jurisdiction to write the ‘Law & Practice’ sections. In addition, the ‘Trends & Developments’ sections analyse trends and developments in local legal markets. Disclaimer: The information in this guide is provided for general reference only, not as specific legal advice. Views expressed by the authors are not necessarily the views of the law firms in which they practise. For specific legal advice, a lawyer should be consulted. Content Management Director Claire Oxborrow Content Manager Jonathan Mendelowitz Senior Content Reviewers Sally McGonigal, Ethne Withers, Deborah Sinclair and Stephen Dinkeldein Content Reviewers Vivienne Button, Lawrence Garrett, Sean Marshall, Marianne Page, Heather Palomino and Adrian Ciechacki Content Coordination Manager Nancy Laidler Senior Content Coordinators Carla Cagnina and Delicia Tasinda Content Coordinator Hannah Leinmüller Head of Production Jasper John Production Coordinator Genevieve Sibayan

Published by Chambers and Partners 165 Fleet Street London EC4A 2AE Tel +44 20 7606 8844 Fax +44 20 7831 5662 Web www.chambers.com

Contents

INTRODUCTION Contributed by Mark Rosman, Proskauer p.4

NETHERLANDS Law and Practice p.231 Contributed by Simmons & Simmons LLP Trends and Developments p.253 Contributed by Simmons & Simmons LLP

AUSTRIA Law and Practice p.9 Contributed by bpv Huegel

PORTUGAL Law and Practice p.257

CHINA Law and Practice p.31

Contributed by Abreu Advogados Trends and Developments p.287 Contributed by Abreu Advogados

Contributed by Haiwen & Partners Trends and Developments p.58 Contributed by Beijing DHH Law Firm

SINGAPORE Law and Practice p.292

EU Law and Practice p.64

Contributed by Drew & Napier LLC Trends and Developments p.316 Contributed by Drew & Napier LLC SOUTH KOREA Law and Practice p.323 Contributed by Shin & Kim Trends and Developments p.345 Contributed by Shin & Kim USA Law and Practice p.352 Contributed by A&O Shearman Trends and Developments p.374 Contributed by A&O Shearman USA – CALIFORNIA Trends and Developments p.382 Contributed by Crowell & Moring LLP

Contributed by Van Bael & Bellis Trends and Developments p.87 Contributed by Van Bael & Bellis

GERMANY Law and Practice p.95 Contributed by SZA Schilling, Zutt & Anschütz Trends and Developments p.119 Contributed by SZA Schilling, Zutt & Anschütz

GREECE Law and Practice p.125

Contributed by Karatzas & Partners Trends and Developments p.148 Contributed by Kyriakides Georgopoulos Law Firm ISRAEL Law and Practice p.157 Contributed by Herzog Fox & Neeman JAPAN Law and Practice p.177 Contributed by Anderson Mori & Tomotsune

USA – WASHINGTON Trends and Developments p.387 Contributed by Wilson Sonsini Goodrich & Rosati

MEXICO Law and Practice p.198 Contributed by Nader, Hayaux & Goebel Trends and Developments p.223 Contributed by Von Wobeser y Sierra, SC

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INTRODUCTION

Contributed by: Mark Rosman, Proskauer

Proskauer has 800+ lawyers in key financial centres around the world, and is known for its pragmatic and commercial approach. The firm works seamlessly across practices, industries and jurisdictions, with asset managers, private equity and venture capital firms, Fortune 500 and FTSE companies, major sports leagues, entertainment industry legends and other in - dustry-redefining companies. Proskauer has a full-service litigation practice with extensive trial

experience in virtually every major forum across the globe. It wins make-or-break cases, chang - es laws and establishes precedents. The firm’s litigators cover the full spectrum of complex commercial litigation practice areas and handle the complete range of sophisticated litigation, trial, appellate, counselling and investigations. It takes a collaborative approach whilst aiming for and delivering successful outcomes for its clients. and merger and civil non-merger cases. He previously served as assistant chief of the national criminal enforcement section of the DOJ’s Antitrust Division, and as special assistant to the directors of enforcement at the Antitrust Division’s office of operations. Mark is a prolific author on antitrust law, and has extensive experience in handling Foreign Corrupt Practices Act (FCPA) violations, fraud investigations, bribery, etc.

Contributing Editor

Mark Rosman is a partner at Proskauer. A first-chair trial lawyer with over 30 years’ experience litigating in both the public and private sectors, Mark is a seasoned litigator,

representing companies and individuals in connection with national and international antitrust and criminal matters, including cartel defence, criminal enforcement investigations,

Proskauer Eleven Times Square New York NY 10036-8299 USA

Tel: +1 212 969 3000 Fax: +1 212 969 2900 Email: kdonner@proskauer.com Web: www.proskauer.com

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INTRODUCTION Contributed by: Mark Rosman, Proskauer

Frameworks In many cases, there have been significant and sometimes nuanced changes to cartel laws, procedures and personnel. The contributing authors, all chosen experts in their jurisdictions, will cover the legal and procedural frameworks in their respective countries: What constitutes a violation? Which are the key procedures of which to be aware? The experts will describe the various leniency and whistle-blower regimes: Does a leniency programme exist and how does it work? They will describe the enforcement framework, giving insights into local cartel regulators and how each works: Who is responsible for cartel enforce - ment? How do they run an investigation? Remedies will be covered as well so that com - panies and practitioners can fully understand the potential fines and consequences of cartel sanctions in each jurisdiction. Over 40 countries have laws imposing some kind of criminal penal - ties on cartel participants. So, it is important to know: Are there criminal penalties involved? Can employees go to jail for cartel offences? One potentially significant consequence that flows from cartel regulation is the risk of private civil litigation and follow-on damages: What is the risk of being sued by customers or consum - ers? How much is at stake? In America, almost as night follows day this risk is extremely high. As more countries adopt a private damages regime, this risk grows. This guide and its contributing authors will cover, by jurisdiction, these topics and any respec - tive changes in depth. But the common thread remains that cartel enforcement is a worldwide priority and will continue to be so especially dur - ing and in the aftermath of economic crisis and

Global Overview for Cartels 2025 “ You can’t step into the same river twice. ” – Heraclitus “ What is actual is actual only for one time. And only for one place. ” – T.S. Eliot “ Change. You can change. ” – Tears for Fears Introduction While change may be an inevitable and constant force with which to be reckoned, 2025 presents a year of sweeping changes and unique chal - lenges for business people, competition lawyers, and regulators alike. The year presents astonish - ing political, technological, and socio-economic transition. The prospect of new tariffs and trade wars great - ly complicates the competitive landscape and underscores how intimately connected and inex - tricably intertwined commerce is among nations. From a technological perspective, the introduc - tion of artificial intelligence promises to not just change but transform business, economics, and indeed life as we know it. Challenging and uncertain economic times give birth to cartels. But amidst all this change, one constant counter-trend emerges: cartel enforce - ment. Across the globe, a near universal view remains among agencies and courts that cartel behaviour harms consumers by raising prices and reducing output, and needs to be stopped. Against this backdrop, welcome to the Cham - bers Cartels 2025 Global Overview. Here, read - ers will find the current state of play for cartel enforcement and private damages suits in 12 countries and the EU, across three continents.

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INTRODUCTION Contributed by: Mark Rosman, Proskauer

societal upheaval. This leads to the expanded section at the end of this guide outlining trends, which harks back to the theme of this introduc - tion: change. Trends As Yoda explained in the underrated Star Wars Episode 1, The Phantom Menace, “Fear is the path to the dark side”. Similarly, change, like the trends below, breeds uncertainty. Uncertainty leads to fear and unease. Fear and unease can lead to cartel behaviour. Questions arise: Will we miss our quarterly sales targets again? Will customers accept another price increase if our costs continue to go up? How can we be sure that our competitors will pass on a cost increase and not take our market share? Under such circumstances and pressure, and as has happened many times in the past, managers are tempted to ask the sales team to find out what the competitors are doing. The salespeople may in turn reach out to their trusted counterparts or friends at the competing companies to find out for sure what the competitors intend to do. And so it goes. Crisis cartels The 9/11 crisis brought the airlines together, where they communicated and widely adopted fuel and security surcharges in response to the crisis. This conduct ultimately resulted in global government and private enforcement with bil - lions of dollars in fines and jail time in, and extra - dition to, the United States for some executives. Similarly, the volatility resulting from the 2008 financial crisis caused banks to come togeth - er and collude on LIBOR, foreign currency exchanges, and other financial products – again, followed by aggressive cartel enforcement, mas - sive fines and follow-on damages, and jail time.

With the COVID-19 pandemic barely in the rear- view mirror, recent inflationary pressures, and now newly introduced tariffs, one can only ask: How will businesses cope? Are compliance pro - grammes up to the task? And what are various jurisdictions doing to bust up the next big inter - national or domestic cartel? Recently, there have been news reports about “tariff surcharges”. Of course, a surcharge unilat - erally derived is not a violation of law. But when an industry adopts a uniform surcharge, regula - tors sit up and take note. Roger Alford, Principal Deputy Assistant Attor - ney General at the US Department of Justice’s Antitrust Division, in response to a climate of tariff setting, recently discussed the need for authorities to remain vigilant for signs of collu - sion. He warned that the imposition of trade bar - riers could reduce foreign competition which in turn could lead to greater market concentration and less competition. This in turn could increase the risk of collusion on pricing or output. In this example, the DOJ is putting companies on notice to use caution during these turbulent economic times (Khushita Vasant, US DOJ’s Alford Warns of Risk of Anticompetitive Behavior in Response to Tariffs, MLEX (4 April 2025)). Artificial intelligence and pricing algorithms Over the past decade, certain kinds of technolo - gy have developed as an industry-wide tool that can help businesses manage inventory and set pricing based on current, or recent, supply and demand data. With widespread industry adop - tion of such a common algorithm, regulators have begun to view this technology with deep suspicion. Can a pricing algorithm function at the centre in a new version of the classic hub- and-spoke conspiracy? Are the smoke-filled rooms of the cartels of yesteryear being replaced

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INTRODUCTION Contributed by: Mark Rosman, Proskauer

by a virtual reality involving a program designed to raise prices and maximise profits? While it would seem reasonable to assume that some evidence of a meeting of the minds or the human hand would still be needed to prove a price-fixing agreement among competitors, the United States government seems to be leaning otherwise. For example, the US Department of Justice in recent years has taken the view that use of such algorithms, under certain circum - stances, can be tantamount to collusion and a violation per se of antitrust laws (Department of Justice, Statement of Interest of the United States, In re: RealPage, Rental Software Anti - trust Litigation, Case No 3:23-MD-3071 (15 November 2023)). Similarly, as a past Chairperson of the US Feder - al Trade Commission foreshadowed a few years ago, “Everywhere the word algorithm appears, please insert the words a guy named Bob. Is it OK for a guy named Bob to collect confidential pricing strategy information from all the partici - pants in a market, and then tell everybody how they should price? If it isn’t OK for a guy named Bob to do it, then it probably isn’t OK for an algorithm to do it either” (Maureen K. Ohlhaus - en, Acting Chairman, US Fed. Trade Comm’n, Should We Fear the Things that Go Beep in the Night? Some Initial Thoughts on the Intersection of Antitrust Law and Algorithmic Pricing (23 May 2017)). The rapid developments in and increasingly widespread use of artificial intelligence also will present questions and challenges related to cartel conduct and enforcement. Depending on how business train and use AI, could it become a way to facilitate cartel behaviours? To what extent will business people rely on AI to advise or coach them through delicate competitor com -

munication? Conversely, will regulators be able to use AI to help detect or monitor suspicious pricing patterns or cartel conduct? We may not know the answers to these and related ques- tions for some time, but practitioners around the globe will need to start considering how clients and regulators will make use of this extraordinary technology. Information sharing With an increased focus on compliance training, business people around the globe are increas - ingly aware of the risks of engaging in cartel behaviours. Nevertheless, grey-area conduct involving sharing of confidential and competi - tively sensitive commercial information, related to pricing, margins, costs, and output, for exam - ple, appears to be flourishing. In many jurisdic - tions, because it can have the effect of reduc - ing competitive uncertainties to the customer’s disadvantage, competition regimes and regula - tors view sharing of this type of information as a potential cartel offence. At the same time, companies have many legiti - mate reasons to exchange certain types of information, especially when facing common obstacles such as supply shortages or regula - tory concerns. Thus, knowing the laws and the current enforcement landscape in key jurisdic - tions is critical for business. Environmental, social and governance cartels Along these lines of pro-competitive reasons for information sharing, many jurisdictions are adopting environmental, social and governance (ESG) mandates or policies which have in turn brought businesses together for industry discus - sion. It is important to understand, by jurisdic - tion, if there is any guidance issued by authorities about avoiding cartel behaviour while discussing adoption of ESG standards. To comply with ESG

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INTRODUCTION Contributed by: Mark Rosman, Proskauer

mandates, companies need to understand the implications of sharing strategies and informa - tion that could affect pricing or output. Labour market allocation Many jurisdictions now view agreements not to hire or solicit employees (“no poach”) or agree - ments related to wages as cartel offences. In the United States, this conduct is viewed as criminal conduct (see United States v DaVita Inc., No 1:21-cr-00229 (D. Col.); see also Unit - ed States v Lopez, No 2:23-cr-00055 (D. Nev.); DOJ Press Release, Jury Convicts Home Health Agency Executive of Fixing Wages and Fraudu - lently Concealing Criminal Investigation (14 April 2025)). However, when necessary to a joint venture, potential acquisition or other business collabo - ration, such discussions can be legitimate and legal. Understanding where the lines are drawn in this new and expanding area of enforcement is critical. Messaging applications and chat platforms Another form of technology presents chal - lenges in cartel cases: messaging apps and chat platforms. The use of email and text mes - saging is rapidly being replaced by communi - cations through messaging applications and

chat platforms. Many such apps are designed to be ephemeral and are not archived or saved. Increasingly, employees are communicating internally and externally through messaging applications, and when using their personal devices, mixing business and personal commu - nications on the same device. The key evidence in a cartel matter often involves written competitor communications. If such communication takes place through ephemeral messaging, counsel and companies seeking to understand the facts may be stymied. Regu - lators now expect companies to find a way to preserve and maintain such communications or face penalties such as fines, contempt or even obstruction of justice (Case COMP/40882 – IFF – deletion of data, Comm’n Decision (24 June 2024); see also: United States v DaVita Inc., No 1:21-cr-00229 (D. Col.)). Conclusion Change is a constant. In the face of such turbu - lence, it is important to review guides like this one, that will help practitioners and companies understand the dynamics and nuances of cartel practice across the globe. Having such informa - tion at the ready and for reference will help to successfully navigate and adapt to these chal - lenges.

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AUSTRIA

Czech Republic

Germany

Slovak

Vienna

Austria

Law and Practice Contributed by: Astrid Ablasser-Neuhuber and Sebastian Reiter bpv Huegel

Hungary

Italy

Slovenia

Croatia

Contents 1. Cartels Law and Regulation p.12 1.1 Legal Bases p.12 1.2 Regulatory/Enforcement Agencies and Penalties p.12 1.3 Private Enforcement p.14

1.4 “Cartel Conduct” p.14 1.5 Limitation Periods p.15 1.6 Jurisdiction p.15

1.7 Principles of Comity p.15 1.8 Enforcement Priorities p.16 1.9 Guides Published by Governmental Authorities p.16 2. Early Stages of Cartel Enforcement p.16 2.1 Initial Investigation p.16 2.2 Dawn Raids/Search Warrants p.17 2.3 Spoliation of Evidence p.17 2.4 Role of Counsel p.17 2.5 Obtaining Evidence/Testimony p.18 2.6 Attorney-Client and Other Privileges p.18 2.7 Non-Cooperation p.19 2.8 Protection of Confidential/Proprietary Information p.20 2.9 Arguments Against Enforcement Actions p.21 3. Leniency, Immunity and Whistle-Blower Regimes p.21 3.1 Leniency p.21 3.2 Amnesty/Immunity p.22 3.3 Whistle-Blowers p.23 4. Procedural Framework for Cartel Enforcement p.23 4.1 Obtaining Evidence From Employees p.23 4.2 Obtaining Documentary Evidence From Subject/Target Companies p.23 4.3 Obtaining Evidence From Entities Outside the Jurisdiction p.23

4.4 Domestic Inter-Agency Co-Operation p.23 4.5 International Inter-Agency Co-Operation p.24 4.6 Issuing Criminal Indictments p.24 4.7 Issuing Civil Complaints p.24 4.8 The Role of Experts p.24 4.9 Possibility of Multiple Proceedings p.24

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AUSTRIA CONTENTS

5. Sanctions and Remedies in Criminal Cartel Enforcement p.25 5.1 Imposition of Sanctions/Fines p.25 5.2 Plea Bargaining/Settlement p.25 5.3 Effect of Liability Being Established p.25 5.4 Sanctions and Penalties in Criminal Proceedings p.26 5.5 History of Criminal Sanctions p.26 5.6 Relevance of Effective Compliance Programmes p.26 5.7 Mandatory Consumer Redress p.26 5.8 Judicial Review or Appeal p.27 5.9 Timeline of Cartel Enforcement Process p.27 6. Civil Litigation p.27 6.1 Private Rights of Action p.27 6.2 Collective Action p.28 6.3 Indirect Purchasers and “Passing On” Defences p.28 6.4 Evidence Obtained From Governmental Investigations/Proceedings p.28 6.5 Frequency of Completion of Litigation p.28 6.6 Attorneys’ Fees p.29 6.7 Costs/Fees p.29 6.8 Judicial Review or Appeal p.29 7. Trends in Cartel Enforcement p.29 7.1 Information Sharing as a Cartel Offence p.29 7.2 Use of AI and Algorithms p.29

7.3 Monopolisation as a Cartel Offence p.29 7.4 Focus on Certain Industries/Sectors p.29

7.5 Use of Messaging Applications and Chat Platforms p.29 7.6 “No Poach” and Labour Market Allocation Conduct p.30 7.7 Leniency v Ex Officio Investigations p.30 7.8 Domestic v International Investigations p.30 7.9 Environmental, Social and Governance (ESG) Cartels p.30 7.10 Crisis Cartels p.30

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AUSTRIA Law and Practice Contributed by: Astrid Ablasser-Neuhuber and Sebastian Reiter, bpv Huegel

bpv Huegel has one of the premier competition law practice groups in Austria, with an experi - enced team of specialists representing blue- chip clients from around the world in headline competition matters. With offices in Vienna and Brussels, bpv Huegel offers expertise in both Austrian and European practice. Its affiliation with bpv LEGAL offices in the Czech Repub -

lic, Slovakia, Hungary and Romania provides clients with a seamless cross-border service in CEE. The firm advises companies on the full spectrum of competition matters, including car - tels, merger control, abuse of dominance, joint ventures, cross-border transactions, private damages claims, state aid and compliance.

Authors

Astrid Ablasser-Neuhuber is head of the competition/antitrust practice at bpv Huegel and has been involved in almost all the important competition and antitrust cases in Austria in

Sebastian Reiter is an attorney in bpv Huegel’s competition and antitrust practice and has been with the firm since 2021. He previously worked at a major US law firm’s Frankfurt office, linking

recent years. Astrid has practised EC competition law in Vienna/Brussels for over three decades. She specialises in national and European antitrust and merger control law, representing national and international clients in antitrust and merger cases before the Austrian and European competition authorities as well as in proceedings before the European courts. She has worked with several antitrust authorities, including the EC/Merger Task Force in Brussels. Astrid is on the board of the Austrian Federation for the Protection of Intellectual Property.

Austrian antitrust law with the global practice hubs in Brussels, London, Washington, DC, and Germany. Sebastian trained in competition policy and economics as a Fulbright student at the Yale Law School. He holds a PhD in energy law from the University of Vienna. Sebastian has significant experience in all areas of competition law, including dispute resolution and cartel-related internal investigations. He also advises on FDI control and the intersection of competition law and regulated industries.

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AUSTRIA Law and Practice Contributed by: Astrid Ablasser-Neuhuber and Sebastian Reiter, bpv Huegel

bpv Huegel Schreyvogelgasse 2 1010 Vienna Austria Tel: +43 1 260 50 0 Fax: +43 1 260 50 133

Email: mail@bpv-huegel.com Web: www.bpv-huegel.com

1. Cartels Law and Regulation 1.1 Legal Bases The Cartel Act 2005 sets out the prohibitions against cartels and other horizontal or vertical restrictions (among other competition violations), including provisions regarding the enforcement of private damages actions. The Cartel Act together with the Competition Act also delineate the powers of and procedural rules for the competition law authorities (the so- called “official parties” ), the Austrian Federal Cartel Prosecutor (FCP) and the Federal Compe - tition Authority (FCA). The Competition Act also governs the Commission on Competition, which is an advisory body to the FCA. The Act on the Improvement of Competitive Conditions provides additional competition rules, including non-discrimination provisions. Although the legislation was drafted primarily with a view toward the relation between food suppliers and food retailers, it applies to rela - tionships between any commercial entities that are not end customers – ie, all sellers and re- sellers (Supreme Court, 16 July 2008, 16 Ok 3/08 Sägerundholz ).

1.2 Regulatory/Enforcement Agencies and Penalties Austria’s public enforcement system requires the FCA and the FCP to bring enforcement cases before the Cartel Court. The Cartel Court has sole jurisdiction over all competition proceed - ings pursuant to the Cartel Act 2005. Decisions of the Cartel Court can be appealed to the Supreme Court of Austria as High Cartel Court (Cartel Court and High Cartel Court together the “cartel courts” ). The FCA investigates violations of the competi - tion laws and prosecutes them before the Cartel Court. Although the FCA is part of the Federal Ministry of Economy, Energy and Tourism, it is not bound by any government instructions. The FCA has limited power to issue decisions. It can impose fines for failing to comply with its infor - mation requests. A sanctioned party can appeal such a fine before the Administrative Court of Vienna in the first instance, and before the Supreme Administrative Court or the Constitu - tional Court in the second instance. In addition to the FCA, the FCP can prosecute anti-competitive conduct before the Cartel Court. The FCP is subject to instructions issued by the Federal Minister of Justice.

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AUSTRIA Law and Practice Contributed by: Astrid Ablasser-Neuhuber and Sebastian Reiter, bpv Huegel

Both the FCA and the FCP can request that the Cartel Court issue cease-and-desist orders. The cartel courts can impose fines of up to 10% of the defendant group’s turnover in the year prior to the verdict (Section 29, Cartel Act 2005), declare anti-competitive agreements null and void, and (theoretically) order structural rem - edies, including the breaking-up of an undertak - ing. According to Section 30 of the Cartel Act, the criteria taken into account when determining the amount of a fine are as follows: • the gravity and duration of the infringement (including geographic scope and market shares of the cartelists); • the gains (if any); • the level of fault involved; and • the economic strength of the infringing under - taking. The provision also contains aggravating and mit - igating factors. Notably, one aggravating factor that increases the fine is being a repeat offender against the cartel laws. A prior offence is one for which a fine was imposed, or where the under - taking was previously found guilty of committing a violation of the cartel laws. Similarly, where an undertaking was the “ringleader” or instigator of the infringement, a higher fine can be imposed. Mitigating factors can include that the undertak - ing’s involvement in the infringement was sub - stantially limited, that the undertaking stopped the infringement of its own accord, or that the undertaking has significantly contributed to the FCA’s understanding of the infringement during the investigation. In particular, the co-operation of the undertaking in relation to the FCA’s inves - tigation of the infringement acts as a mitigating factor.

Both the FCA and the Cartel Court have taken the fining guidelines of the European Commis - sion into consideration in past cases, although they have not applied them verbatim. In practice, fines ranged from mid-five-figure euro penalties for smaller infringements to mul - timillion euro penalties. In 2015, in a primarily vertical case that also had horizontal (ie, hub and spoke) elements, a large food retailer was fined EUR30 million for co-ordinating final sell - ing prices in 2015. In 2022, an Austrian under - taking active in the construction industry was fined EUR62.35 million for its participation in the so-called construction cartel, the highest fine imposed on a single undertaking in Austria. The fine was imposed following a settlement. Other companies involved in the construction cartel were fined EUR45.37 million (2021) and EUR26.33 million (2022). A recent (2025) gun- jumping decision concerning a food-retailer imposed a penalty of EUR70 million, indicating a willingness by the High Cartel Court to impose significantly higher fines on high turnover com - panies. In Austria, cartels are not threatened by criminal sanctions, unless they qualify as bid rigging or fraud (or both). Corporations can be prosecuted for criminal offences committed by their man - agement and employees under the Corporate Criminal Liability Act. Bid rigging (Section 168b, Criminal Code) is punishable by up to three years in prison. Both public and private tenders are covered by the provision as recently clarified by the Supreme Court (22 November 2023, 11 Os 112/23i). Fraud (Section 146, Criminal Code) is punishable by up to ten years. Bid rigging and fraud both also carry monetary fines.

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AUSTRIA Law and Practice Contributed by: Astrid Ablasser-Neuhuber and Sebastian Reiter, bpv Huegel

In one bid rigging case, the defendants were sentenced to between nine and 11 months, in addition to monetary fines (Supreme Court, 26 September 2001, 13 Os 34/01). In another case, one defendant was sentenced to six months in prison (followed by 18 months of parole), and the other defendants were sentenced to up to 20 months in prison, although their sentences were suspended and they were released on three-year probation (Supreme Court, 6 October 2004, 13 Os 135/03 – Lower Austrian Window Cartel). In another case, the defendant received a five-year prison sentence, although that case involved other crimes as well as serious fraud, including embezzlement (Supreme Court, 28 June 2000, 14 Os 107/99). Under the Austrian Federal Procurement Act, a criminal conviction may lead to exclusion from future public tenders. According to Section 68 (1) of the Austrian Federal Procurement Act, the contracting authority may (subject to some very limited exemptions) exclude undertakings from participation in a procurement procedure if it has knowledge of a conviction for bid rigging or fraud. 1.3 Private Enforcement Private enforcement motions may be brought before the Cartel Court to obtain cease-and- desist orders and declaratory judgments, but not to obtain fines. For actions seeking a declaratory judgment, the applicant must show that it has a legal interest in such a judgment. Private actions seeking money damages need to be brought before the general civil or com - mercial courts. 1.4 “Cartel Conduct” The prohibitions against cartel conduct pursuant to Section 1 of the Cartel Act 2005 are very simi -

lar to those of Article 101 (1) Treaty on the Func - tioning of the European Union (TFEU), which is also directly applicable in Austria. The European Commission’s enforcement practices and poli - cies are generally observed in Austria. Section 1 (1) of the Cartel Act 2005 prohibits all agreements between undertakings, decisions by associations of undertakings, and concerted practices that have as their object or effect the prevention, restriction or distortion of competi - tion. Section 1 (2) sets out a non-exhaustive list of prohibited practices, including: • directly or indirectly fixing purchase and sell - ing prices or any other trading conditions; • limiting or controlling production, markets, technical development or investments; • sharing markets or sources of supply; • applying dissimilar conditions to equivalent transactions with other trading partners, thereby placing them at a competitive disad - vantage; and • making the conclusion of contracts subject to acceptance by the other contract parties of supplementary obligations that, by their nature or according to commercial usage, have no connection with the subject of such contracts. Pursuant to Section 1 (4) of the Cartel Act 2005, cartels by recommendation – ie, recommenda - tions to observe specific prices, price limits, rules of calculation, trade margins or rebates that restrict, or are intended to restrict, competi - tion – also qualify as prohibited cartel behaviour. In contrast, bona fide recommendations with - out any assertion of economic pressure are not prohibited. Section 2 (1) of the Cartel Act 2005 provides for an exemption from the prohibition of cartels if the

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AUSTRIA Law and Practice Contributed by: Astrid Ablasser-Neuhuber and Sebastian Reiter, bpv Huegel

conduct contributes to improving the produc - tion or distribution of goods (or services) while allowing consumers a fair share of the resulting benefit, or to promoting technical or economic progress. Such conduct must be indispensable to the attainment of the beneficial objectives, and cannot eliminate competition in a substan - tial part of the relevant products (or services). Consumers are also deemed to receive a fair share of the benefits if the benefits substantially contribute to an ecologically sustainable or cli - mate-neutral economy. Section 2 (2) of the Cartel Act 2005 sets out a de minimis exemption (based on the market shares of the involved undertakings not exceed - ing a certain level) and also carves out from the prohibition of Section 1 certain limited conduct involving the following: • books, art prints, sheet music, magazines, newspapers and publishers; • co-operatives; and • agricultural producers and associations of agricultural producers. 1.5 Limitation Periods The Cartel Court may impose sanctions for viola - tions of the Cartel Act if the application has been filed within five years of the termination of the violation. A continuous infringement is deemed to have ended when the last infringing action is completed. Different limitation periods apply under criminal law (ie, bid rigging, fraud, etc). The limitation period is interrupted as of the date when the FCA notifies its investigation (or prosecution) to at least one of the undertakings that participated in the infringement. Each such interruption restarts the limitation period. Not - withstanding any such interruptions, however, the limitation period expires no later than ten

years from the termination of the infringement (although the limitation period does not run while any court proceedings are ongoing). Private claims for damages are time-barred five years after becoming known or reasonably knowable to claimants, including knowledge of the damages incurred, the party causing the damages, and the legal claim under competi - tion law ( “short limitation period” ). Regardless of claimant’s knowledge, private claims are time- barred ten years after the damage was caused ( “absolute/long limitation period” ). The limitation period is suspended during any proceedings or investigations by the FCA, as well as dur - ing settlement negotiations. Because of com - plex transition rules that were enacted with the transposition of the EU Cartel Damages Direc - tive 2014/104/EU, the application of statute of limitation rules needs to be carefully assessed case by case. 1.6 Jurisdiction Pursuant to Section 24 (2) of the Cartel Act 2005, Austrian competition law applies only to con - duct that affects the domestic market. Domestic effects are determined without regard to whether the conduct occurred in Austria or abroad. For example, the application of the Cartel Act does not depend on where an agreement was entered into, where an abusive practice originated, or whether Austrian undertakings are involved. The only criterion to establish jurisdiction is whether the agreement or behaviour had an effect on the Austrian market. 1.7 Principles of Comity The FCA exercises its authority to apply EU rules and collaborates with the European Commission in its investigations, pursuant to, inter alia, Sec - tions 3 and 12 of the Competition Act. The FCA

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AUSTRIA Law and Practice Contributed by: Astrid Ablasser-Neuhuber and Sebastian Reiter, bpv Huegel

is also integrated into the network of European national competition authorities. In particular, the FCA exchanges information and documents with the European Commission and competition authorities of other EU member states, pursuant to Section 10 (1) of the Com - petition Act. However, the FCA may not base applications to the Cartel Court (to impose fines) on information about leniency applications that it has received from other competition authorities. Such an application must be based on informa - tion obtained from other sources pursuant to Section 11b(5) of the Competition Act. The FCA has also signed memoranda of understanding with various national competition authorities, which allow for varying degrees of co-operation in any investigation. Contacts and co-operation are believed to be especially close with the German Federal Cartel Office. 1.8 Enforcement Priorities The FCA closely monitors the economic envi - ronment with a recent focus on the energy sec - tor. Bid rigging and price fixing are prosecuted equally as a matter of enforcement policy. The FCA continues to pursue the so-called “con- struction cartel” , Austria’s biggest case, which is primarily a bid rigging infringement. While leniency applications remain relatively low in number, they consistently generate enforce - ment. Moreover, the FCA’s whistle-blowing plat - form leads to approximately 10–15 cases that are probed for potential cartel infringements per year. Furthermore, the FCA is looking into combating unfair trading practices in the agricultural and

food supply chain, along with online food deliv - ery platforms. Dr Natalie, Harsdorf-Borsch has been appointed permanent director of the FCA and continues to drive the agency’s work. 1.9 Guides Published by Governmental Authorities The following written guides relate to cartel con - duct and enforcement: • Handbook on Leniency Programme; • Standpoint on Resale Price Maintenance; • Guidance on Dawn Raids; • Cartels and Abuse Control; • Whistleblowing-System of the Austrian Fed - eral Competition Authority; • Position Paper on Settlements; • Guidance for Fair Conduct in Business; • Proposition Paper Digitalisation and Competi - tion Law ; • Guidelines on the Application of Section 2, paragraph 1 of the Cartel Act to Sustainability Cooperations (Sustainability Guidelines); • “Competition Law and Compliance” (only available in German); and • Preventing and uncovering Bid Rigging – a Checklist (only available in German).

2. Early Stages of Cartel Enforcement 2.1 Initial Investigation

The FCA typically takes the first steps in opening an investigation. If the FCA believes that com - petition law has been infringed on the basis of factual evidence that it gathers during its inves - tigation, the FCA or the FCP (or both) may file a motion with the Cartel Court for the parties to cease and desist their conduct or to impose

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AUSTRIA Law and Practice Contributed by: Astrid Ablasser-Neuhuber and Sebastian Reiter, bpv Huegel

fines. Often, the FCA enters into settlement talks with undertakings prior to bringing an applica - tion before the Cartel Court. As part of that process, the undertakings must acknowledge certain facts about the underlying conduct, as well as the legal basis of a fine. The Cartel Court cannot go beyond the fine applied for by the FCA or the FCP. The Cartel Court is not restricted to the evidence offered by the parties during the proceeding; it may gather evidence itself ex officio. The pro - ceedings may end with a decision or dismissal (on technical grounds or on substance) of the official parties’ motion. The duration of the pro - ceedings (from the start of the investigation to the Cartel Court’s decision) varies from case to case, and depends on the complexity of the par - ticular case at issue. The decision of the Cartel Court (unless the subject of a settlement with the official parties) can be appealed to the Cartel Court of Appeals, which usually takes at least six months to render a decision. 2.2 Dawn Raids/Search Warrants Dawn raids are a common tool employed by the FCA to investigate cartels in Austria. In recent years, prominent dawn raids were conducted in the waste disposal sector across Austria, in the pellets sector, in the beer industry and in the refrigerator and cooling units sectors. The offices of Red Bull were searched on behalf of the European Commission. Upon a request by the FCA, the Cartel Court can order an investigation of business premises, pursuant to Section 12 of the Competition Act. Generally, outside counsel can represent the investigated company in all aspects relating

to the dawn raid, and can be present on site during the raid to advise the company. During a dawn raid, the company has the right to ask for its legal advisers to be present, although the FCA is not obliged to wait for their arrival to start its search. Typically, the FCA does not conduct substantive interviews during a dawn raid. When it does, company counsel can usu - ally be present. For senior representatives of the company (who are deemed to speak on behalf of the company), there arguably exists a right to counsel being present during such an interview. For other employees, the presence of individual counsel would only be necessary in extraor - dinary circumstances (eg, involving potential criminal liability as a result of suspected fraud). 2.3 Spoliation of Evidence During a dawn raid, the company is usually informed by the authorities that the destruction of data or documents can be an aggravating factor during any subsequent fine proceedings. According to the FCA’s handbook on dawn raids, full co-operation with the investigation (in the context of a leniency application or other oppor - tunities for obtaining a reduction in fines) entails that the company does not allow evidence to be concealed, falsified or destroyed. Arguably, the effectiveness of cartel investiga - tions is also protected by the Austrian Criminal Code, which includes a general prohibition of destroying, damaging or suppressing evidence. 2.4 Role of Counsel Officers and employees have a right to counsel if they are representatives of the affected com - pany. Those persons whose conduct is subject to investigation and gives rise to antitrust pro - ceedings (especially senior personnel with rep - resentative powers, such as board members) or employees suspected of potential antitrust

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AUSTRIA Law and Practice Contributed by: Astrid Ablasser-Neuhuber and Sebastian Reiter, bpv Huegel

2.5 Obtaining Evidence/Testimony In addition to the documents and testimony col - lected during a dawn raid, the FCA may request information from the company during its inves - tigation. It can issue a summons to interview company personnel, and can also request that the company provides additional documents or data. Such requests for information can also be sent to other persons or companies that may have helpful information. Companies, their repre - sentatives and employees are, inter alia, obliged to provide information requested by the FCA, submit business documents or grant access to electronic documents pursuant to Section 11a of the Competition Act. In addition, the FCA can request official assis - tance from the general criminal prosecutor’s office or other government institutions in its investigation. Criminal prosecutors have surveillance powers for violations of criminal offences that, in the context of cartel conduct, typically involve bid rigging in violation of Section 168b of the Aus - trian Criminal Code or fraud in violation of Sec - tion 146 of the Austrian Criminal Code. 2.6 Attorney-Client and Other Privileges The FCA has stated that it recognises attorney- client privilege to comply with the ECJ’s juris - prudence (C-155/79, AM & S; C-550/07 P, Akzo Nobel). While there is no settled jurisprudence on the existence of a legal privilege in the con - text of a dawn raid, the Supreme Court of Austria recently stated in passing that if the FCA uses evidence gathered in a dawn raid in a manner that circumvents the legal protection of attorney- client privilege, such evidence might have to be disregarded by the courts (7 July 2022, 24 Kt 4/22a).

infringements are regarded as representatives of the affected company. Employees who are interviewed as witnesses have, in general, no formal right to counsel. However, they must be properly informed of their rights and obligations. Legal advice obtained from in-house counsel is not protected by legal privilege. Interviewed employees of the affected company have the right to involve personal legal coun - sel. As regards the counsel’s ability to speak or advise the interviewee during the interview, the general provisions and restrictions of the Aus - trian Professional Rules of Attorneys apply, pur - suant to which, for example, a counsel may not unduly influence a witness’ statement. Since administrative proceedings against indi - viduals cannot result in fines, and criminal proceedings are limited to cases involving bid rigging or fraud, it is not usually necessary for individuals to have separate counsel from their employers. Counsel would also not be neces - sary for an employee whose employer submits a successful leniency application, as discussed in 3.1 Leniency and 3.2 Amnesty/Immunity . However, there may be other potential liability risks for management or employees (eg, labour or civil recourse claims) that may require indi - vidual representation. In a dawn raid, apart from the usual steps taken in responding to a dawn raid, defence counsel will determine whether leniency is available and to what extent. If, instead, the initial steps are in response to an information request from the authority, defence counsel will likewise quickly need to determine whether unlawful conduct has occurred and whether applying for leniency is a possibility.

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AUSTRIA Law and Practice Contributed by: Astrid Ablasser-Neuhuber and Sebastian Reiter, bpv Huegel

Under Austrian law, legal advice from in-house counsel is not protected by statutory legal privi - lege. In addition, in the view of the Austrian authorities, Austrian law does not privilege cor - respondence between an undertaking and its outside counsel, unless the correspondence is in the possession of the lawyer. However, a lawyer cannot be compelled to testify against the inter - est of their client unless they are authorised by the client to do so. The legal privilege (within the outlined scope) is not limited to counsel admit - ted in Austria, but also applies to legal counsel of other EU member states. When European competition law is enforced, including dawn raids orchestrated by the FCA itself, legal privilege as set out in EU law applies. Neither a company nor its representatives can be compelled to admit to an infringement, either in an interview or in response to an information request. However, this privilege is limited, as company representatives are under an obliga - tion to reply to all questions relating to the under - lying facts of a potential infringement. In criminal proceedings, there is complete privi - lege against self-incrimination, including the right to refuse to testify. In theory, a company that is subject to a dawn raid can object to the collection of data or docu - ments (or the interviewing of witnesses) on the basis of legal privilege or that the information sought falls outside the scope of the search warrant authorising the dawn raid. However, no clear legal protections exist in such circumstanc - es. If a party refuses to have certain individu - ally specified documents inspected or seized on the grounds of legal privileges, such docu - ments must be presented to the Cartel Court, which will rule on whether and to what extent

they may be inspected (Section 12 (5), Competi - tion Act). The FCA may not inspect such docu - ments in advance of such a ruling, as, following amendments to the Competition Act in 2013, the affected company can only object to a dawn raid search with regard to individually specified docu - ments (a categorical sealing of documents is not permitted), and even then, only with respect to a very limited set of circumstances, either if the information is legally privileged or other rights to refuse to testify on the basis of a professional duty of confidentiality, medical concerns or elec - toral secrecy, that are unrelated to the scope of the search warrant or any legal privilege (per Sections 12 (5) and (6) of the Competition Act). As a matter of good practice, the FCA has stated that it will seal narrow categories of documents and keep them separate from its general case file if it is impractical for the party to specify individual documents during the dawn raid. The company will be given time to inspect the docu - ments and identify those it wishes to protect within a reasonable period of time. Moreover, the FCA allows the company to obtain a copy of all files gathered in the dawn raid that the FCA has made a part of its record file, which the party can review before submitting a statement to the FCA lodging its objections. Any objections lodged by the company against the FCA’s collection of evidence can only be brought before the Federal Administrative Court, which has rendered decisions that set out a very narrow and limited ability for the party to object. 2.7 Non-Cooperation Failure to respond to a so-called simple informa - tion request does not lead to any sanctions. A full information request must be answered cor - rectly and completely, otherwise the undertaking can be subject to administrative fines.

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AUSTRIA Law and Practice Contributed by: Astrid Ablasser-Neuhuber and Sebastian Reiter, bpv Huegel

As a matter of fact, requests for information are not usually challenged. 2.8 Protection of Confidential/Proprietary Information There is no general right to access the files of the FCA or FCP. The Supreme Court has ruled that the Cartel Court’s file is to be given to the criminal prosecu - tor on request (Supreme Court, 22 June 2010, 16 Ok 3/10). However, there is currently a case pending at the ECJ to determine whether or not a leniency agreement may be withheld from the criminal prosecutor in order to protect the leni - ency applicant from self-incrimination (ECJ, 1 January 2023, C-2/23). Section 39 of the Cartel Act states that non-par - ties may only access the file of the Cartel Court with the consent of the parties to the proceed - ings. However, consent may be withheld as long as it is not thereby rendered practically impos - sible or excessively difficult for the requesting party to recover damages. In the context of car - tel damages claims, the ECJ has ruled that this is incompatible with EU law, and that a national court must determine whether to allow access to case files by balancing the legitimate inter - est of confidentiality and the protection of the leniency programme against the requesting indi - vidual’s interest in the enforcement of its rights (C-536/11 Bundeswettbewerbsbehörde v Donau Chemie). However, with the implementation of the EU Damages Directive in Austria, it is now unclear if the ECJ’s ruling would continue to pre - clude the application of Section 39 of the Cartel Act, as the new laws regulate the right to seek information from administrative proceedings (the absence of which was at issue in the ECJ deci - sion).

Generally, proceedings before the Cartel Court are open to the public. However, parties can apply to the court to exclude the general public (partially or fully) from oral hearings if doing so is necessary to protect business secrets. The Cartel Court is obliged to publish final deci - sions granting, rejecting or dismissing an action, on the following:

• the termination of an infringement; • the finding on an infringement; or • the imposition of fines.

The operative parts of a final decision must be published on the FCA’s website, and the name of the immunity recipient must be included in leniency cases. In settlement cases, the Cartel Court’s decision must also include the reasoning behind the decision. The names of the under - takings concerned also have to be published, as well as the essential content of the decision, including imposed sanctions. Nevertheless, the Cartel Court must take into account the legiti - mate interests of undertakings in the protection of their business secrets and must provide the parties with the opportunity to identify the parts of the decision that they wish not to be disclosed to the public. The FCA is also empowered to inform the pub - lic about proceedings that are “of public impor- tance” . In September 2025 a new “Right to Public Infor- mation” based on a new Information Freedom Act will enter into force. While some sensitive information such as business secrets, protected IP and leniency applications as well as agen - cy-internal preparatory documents will remain exempt, potential claimants of cartel damages may consider requesting information from the

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