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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