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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