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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