AUSTRIA Law and Practice Contributed by: Astrid Ablasser-Neuhuber and Sebastian Reiter, bpv Huegel
to the FCA’s proceedings (Section 11b(2), Com - petition Act). See 3.2 Amnesty/Immunity for further details. Section 3 of the Leniency Regulation provides for the possibility of obtaining “marker” upon submitting certain essential information con - cerning the infringement, such as the name and address of the undertaking seeking the marker and the undertaking participating in the conduct, the cause for concern that led to the request to set a marker on the type of conduct, the dura - tion of the conduct, the product and geographic markets affected by the conduct, and plans to apply for leniency with other competition author - ities. When filing a marker, the FCA recommends using a standard form. The marker must be completed within a dead - line imposed by the FCA (of, in general, up to eight weeks). If the marker is completed in time, all information is deemed to have been submit- ted to the FCA at the time of submission of the marker. The Leniency Regulation expands the possibility to obtain a marker over the “first” undertaking to subsequent undertakings (apply - ing for a reduction of a fine). However, it is up to the FCA to publish how the multiple marker system will work in future. The Austrian leniency programme has turned out to be a very successful tool of public cartel enforcement. The majority of large cartel cases in recent years have been triggered by leniency applications. Individuals can also benefit from reporting car - tel conduct to the authorities. Pursuant to Sec - tion 209b of the Code of Criminal Procedure, the FCA can inform the criminal prosecutor of an individual’s co-operation, and the criminal prosecutor can close its investigation into an
individual’s conduct in light of their contribu - tion to the FCA’s investigation. However, in that instance, the immunity of the individual from criminal fines depends, beyond their own active contribution to the clarification of the infringe - ment, on the success of the leniency applica - tion by their employer. Furthermore, pursuant to Section 209a of the Code of Criminal Procedure, individuals can directly approach the criminal prosecutor and provide them with information on cartel conduct on their own motion (although The first undertaking applying for leniency and meeting all the criteria of Section 11b(1) of the Competition Act may obtain full amnesty. The second, third and other subsequent undertak - ings that cannot meet the criteria of being first, but meet all the other criteria of Section 11b(1), and are able to provide significant added value with respect to the information and evidence already in the possession of the FCA, may obtain a reduced fine (Section 11b(2), Competition Act). In 2022, the FCA published a paper on the reduction of fines in the leniency programme. The following reductions will typically be granted to the second and further subsequent undertak - ings applying for a reduced fine, provided all the criteria of Section 11b(2) of the Competition Act are met: • for a second undertaking, a reduction of 30–50%; • for a third undertaking, a reduction of 20–30%; and • for all subsequent undertakings, reductions of up to 20%. this is not typically done). 3.2 Amnesty/Immunity In determining the reduction, the FCA considers when the additional information and evidence
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