AUSTRIA Law and Practice Contributed by: Astrid Ablasser-Neuhuber and Sebastian Reiter, bpv Huegel
FCA on this basis – whether or not such a right to information exists is untested as yet. 2.9 Arguments Against Enforcement Actions In principle, defence counsel can raise any legal or factual arguments at any point in the investi - gation or proceeding. In addition, as a matter of practice, in most cases a so-called statement of objections is issued by the FCA before it brings the case before the Cartel Court. The undertak - ing can respond to those objections before the case is brought to the Cartel Court upon the sub - mission of an application by the FCA. Once the case is before the Cartel Court, there are multiple stages and exchanges of briefs (and oral hear - ings) between the FCA and the defendants. 3. Leniency, Immunity and Whistle- Blower Regimes 3.1 Leniency A leniency programme has been in force in Austria since 1 January 2006. It is anchored in Section 11b of the Competition Act. In 2021, a Regulation on the Application of the Leniency Programme (the “Leniency Regulation” ) was issued pursuant to Section 11b(4) of the Com - petition Act, comprising detailed information on the application of the leniency programme in Austria. Furthermore, the FCA published a leni - ency handbook on its website. The programme is administered exclusively by the FCA. Under Section 11b(1) of the Competi - tion Act, the FCA can refrain from applying for a fine against an undertaking (ie, full amnesty) if the following four conditions are met: • the undertaking has terminated its involve - ment in an infringement of Section 1 of the
Cartel Act or Article 101 (1) of the TFEU unless the FCA is of the opinion that the con - tinuation of the infringement is necessary to preserve the integrity of its investigation; • the undertaking co-operates truthfully, promptly and without restrictions to fully clarify all aspects of the case and submits complete evidence of the suspected infringe - ment that is in its possession or available and – until permitted by the FCA – neither disclos - es the fact nor the substance of the request for leniency except as otherwise agreed with the FCA; • it is the first undertaking to submit informa - tion and evidence to the FCA which enables the FCA to immediately file an application to conduct a dawn raid, or it is the first under - taking to submit any additional information and evidence to the FCA which, if the FCA has already obtained sufficient information and evidence to apply for a search warrant to conduct a dawn raid, enables the FCA to immediately file an application to impose fines pursuant to Section 36 (1a) of the Cartel Act; and • it did not coerce other undertakings to partici - pate in the infringement. Contrary to the leniency regime at EU level, the Austrian leniency programme is not limited to secret and horizontal agreements. Any type of infringement of Article 101 (1) of the TFEU or Section 1 of the Cartel Act is covered (therefore also, eg, vertical agreements). Secrecy in the strict sense is also no precondition. The leniency programme is not limited to the first undertaking seeking it. However, only the “first in” leniency applicant may obtain full amnesty (ie, full reduction of the fine). Subsequent under - takings can qualify for a reduction in their fines if they are able to provide significant added value
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