AUSTRIA Law and Practice Contributed by: Astrid Ablasser-Neuhuber and Sebastian Reiter, bpv Huegel
4.5 International Inter-Agency Co- Operation See 1.7 Principles of Comity . 4.6 Issuing Criminal Indictments Neither the FCA nor the FCP have the power to seek a criminal indictment for cartel conduct. If there is a potential for criminal liability aris - ing from cartel conduct, the criminal procedures would follow the general rules governing criminal proceedings in Austria, and any ongoing admin - istrative proceedings would continue in parallel before the Cartel Court. 4.7 Issuing Civil Complaints Neither the FCA nor the FCA pursue “civil” cas - es. They can, however, bring various actions that are functionally comparable to civil com - plaints to the cartel courts, including requesting cease and desist orders, requesting remedies (in extraordinary cases even structural remedies) or declaratory judgments. At the cartel courts evidence is presented to a panel of one professional judge and two expert lay-judges. There is no right to pre-trial discovery and the FCA/FCP do not currently grant access to file prior to initiating litigation. Once a trial has begun, defendants have a right to access to all evidence submitted by the FCA/FCP (nar - row limitations to protect the identity of whistle- blowers or business secrets may apply). With respect to private litigation, see 6. Civil Liti- gation . 4.8 The Role of Experts The Cartel Court is not restricted to the evidence offered, and there are no restrictions under Aus - trian law about the forms of permissible evidence that the FCA or FCP may present during the pro -
ceeding. Expert evidence, in particular by eco - nomic experts, is therefore accepted, although, in practice, the Cartel Court often appoints and relies on its own expert witnesses rather than party-instructed expert evidence. Both academ - ics and economic consultants can appointed as experts in practice. 4.9 Possibility of Multiple Proceedings It is possible for parallel proceedings to be brought by the FCA or FCP and the general criminal prosecutor’s office. Multiple proceedings against a single under - taking based on the same facts can be con - ducted as long as the principle of ne bis in idem is observed (eg, it is possible to have one pro - ceeding concerning abuse of dominance and another concerning a prohibited cartel, but not two coinciding proceedings involving the same prohibited cartel). The ne bis in idem princi - ple applies if there is “identity of the material of facts” ie, “a set of concrete circumstances stemming from events which are, in essence, the same, in that they involve the same perpetrator and are inextricably linked together in time and space” (C-117/20, bpost, paragraph 37). How - ever, criminal cases (bid rigging) that are settled in the form of fines without admission of guilt (Diversion) do not preclude a parallel cartel fine (Supreme Court, 16 October 2024, 16 Ok 6/23b). The ECJ recently ruled that the mere fact that an authority of one member state refers in its cartel decision to a factual element relating to another member state is not sufficient to exclude cartel proceedings in the latter member state based on ne bis in idem. It must rather be assessed (inter alia) whether the authority ruled on that factual element and, therefore, whether the decision also covered the territory of the other member
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