AUSTRIA Law and Practice Contributed by: Astrid Ablasser-Neuhuber and Sebastian Reiter, bpv Huegel
state (C-151/20 Bundeswettbewerbsbehörde vs Nordzucker AG ).
to Section 19 of the General Administrative Pro - cedure Act. 5.2 Plea Bargaining/Settlement Neither the Cartel Act nor the Competition Act sets out any specific procedures for settlements or plea bargaining to resolve an investigation. However, in recent years the FCA has extensive - ly used negotiated settlements and continues to heavily promote them. The FCA has published a guideline on settle - ments reflecting its practice. In negotiated reso - lutions, both sides (which is often the FCA in regular consultation with the FCP) agree on the facts of the case and the amount of the fine to be paid. However, this does not cease the proceed - ing. Upon an undertaking’s acknowledgement of its misconduct and the legal basis for a fine and also on the basis of the application filed by the FCA, the Cartel Court renders a decision on the merits and imposes a fine. There is no fixed timeline for plea bargaining. The discussions can be initiated by any party, although the FCA is not likely to entertain settle - ment until it has obtained all the requisite infor- mation in its investigation. Settlement is often viewed by the FCA as a mitigating factor in set - ting the fine, which can result in a reduction of up to 20%. 5.3 Effect of Liability Being Established If a final decision by the Cartel Court establishes an infringement of the competition laws, a civil court is bound by that decision in its own pro - ceedings. The resulting effect is that the plaintiff enjoys a presumption of harm caused by the infringement established by the Cartel Court. The defendant in the civil case can rebut the presumption of harm caused.
5. Sanctions and Remedies in Criminal Cartel Enforcement 5.1 Imposition of Sanctions/Fines Only the Cartel Court may render decisions on the merits in cartel proceedings, including imposing fines. The Cartel Court is bound by the FCA’s application, as it cannot impose higher fines than those proposed by the FCA, although it may impose lower fines. Moreover, the FCA may choose not to specify the amount of the recommended fine, leaving the Cartel Court to determine this on its own. Besides the imposition of fines sanctioning a cartel infringement, fines may also be imposed on undertakings by the FCA pursuant to Sec - tion 11a(5) of the Competition Act to secure the effectiveness of its cartel proceeding. If repre - sentatives of an undertaking provide the FCA with incorrect or misleading statements or fail to provide information, or provide incorrect, misleading or incomplete information, the FCA may sanction the undertaking with a fine of up to 0.5% of the undertaking’s total turnover in the preceding business year. If the obligation to provide information has already been issued by way of an administra- tive decision pursuant to Section 11a(3) of the Competition Act, the FCA may impose a fine of up to 1% of the total turnover achieved in the preceding business year. The FCA may also impose a fine of up to 1% of the total turnover in the preceding business year if the undertaking does not ensure that its representatives comply with summonses issued by the FCA pursuant
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