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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