AUSTRIA Law and Practice Contributed by: Astrid Ablasser-Neuhuber and Sebastian Reiter, bpv Huegel
ing for fraud or bid rigging violations, do not generally include consumer redress. In criminal proceedings, consumers may seek compen - sation for damages, although, in practice, it is rarely awarded. Therefore, consumers typically seek such redress by filing a private damages claim in a civil court. With the introduction of new collective action mechanisms following the transposition of the Collective Action Directive 2020/1828/EU, so-called “qualified consumer protection” entities may start to seek collective redress on behalf of consumers more frequently. 5.8 Judicial Review or Appeal Decisions of the Cartel Court can be appealed to the Supreme Court sitting as the Cartel Court of Appeals for a final decision. In principle, the Supreme Court only reviews issues of law. Amendments in 2017 to the competition laws include a basis for a limited review of important questions of fact. In practice, the Supreme Court sets a very high bar. 5.9 Timeline of Cartel Enforcement Process The timeline very much depends on the size, complexity and importance of the case, ranging from six months to several years.
pensate for the harm done. Private damages claims must be brought before the civil courts. There is no maximum to the damages that can be sought in a private action, other than that they must reflect the harm inflicted as a result of the conduct. Interest is generally payable from the time when the harm was incurred. Punitive dam - ages are not available. Damages are typically calculated by comparing the plaintiff’s financial situation following the conduct and a counter - factual scenario without the cartel. Since its amendment in 2017, the Cartel Act contains specific provisions on the bringing of private damages claims, according to which, harmed customers, but also aggrieved competi - tors may bring damages claims against under - takings that have violated the competition laws against cartel conduct. This is in addition to any ordinary contractual claims or claims for illicit gains that a consumer may pursue in civil court. The new rules in the Cartel Act now expressly refer to Section 273 of the Code of Civil Proce - dure, which, under certain circumstances, allows the civil courts to estimate (rather than strictly ascertain) the compensation to be awarded to plaintiffs. The amendment also makes it clear that the civil courts can take into account any gains from the cartel conduct. Under established case law, the party claiming a breach of competition law must state all the relevant facts that form the basis of the infringe - ment (Supreme Court, 8 October 2008, 16 Ok 8/08 Immofinanz ). Importantly, pursuant to the 2017 amendments to the Cartel Act 2005, under Section 37c(2) there is now a statutory presump - tion of harm caused by cartels between com - petitors that shifts the burden of proof towards the defendant in civil follow-on cases.
6. Civil Litigation 6.1 Private Rights of Action
Private litigants do not typically bring cartel cas - es but pursue their interests through follow-on litigation. Private damages claims in Austria are regulated by the special provisions of Section 37a et seq of the Cartel Act and complemented by the general provisions of Austrian civil law. According to Section 37c(1) of the Cartel Act, undertakings culpably committing an infringe - ment of competition law will be liable to com -
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