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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