AUSTRIA Law and Practice Contributed by: Astrid Ablasser-Neuhuber and Sebastian Reiter, bpv Huegel
The commercial courts may also issue cease- and-desist orders and award damages under Section 1 of the Unfair Competition Act (Supreme Court, 14 July 2009, 4 Ob 60/09s Anwaltssoft- ware ). For claims under the Unfair Competition Act, the Supreme Court has lowered the stand - ard of proof by holding that the plaintiff only has to establish that it is highly probable that some harm has occurred (Supreme Court, 15 Septem - Collective claims were previously not explicitly recognised and regulated under Austrian law, but organised doctrinally by way of assign - ment of individual claims to a collective plaintiff or subsequent joinder of individual claims into a single proceeding. It must be shown in such cases that the claims result from the same set of facts or are based on the same legal title. ber 2005, 4 Ob 74/05v). 6.2 Collective Action Austria transposed the Representative Actions Directive 2020/1828/EU in 2024. So-called “qualified consumer protection organisations” can now pursue competition law claims on behalf of consumers. 6.3 Indirect Purchasers and “Passing On” Defences Those indirectly harmed (eg, the customer of someone who purchased from a cartelist) can establish standing to seek monetary damages if they can show that the overcharge resulting from the cartel conduct was passed on to them. In a lawsuit against elevator manufacturers stem - ming from a European Commission decision and fine, in 2019 the ECJ, in a preliminary rul - ing, clarified that, under the EU cartel prohibition of Article 101 (1) of the TFEU, compensation for infringements is not limited to customers and suppliers in the market affected by the cartel since this would not be compliant with the prin -
ciple of effectiveness. Therefore, persons may seek compensation for the losses they suffered in their capacity as a public body granting sub - sidies. However, such loss must have a causal connection with the infringement of the EU cartel prohibition. In turn, the defendant can argue such pass-on in its defence against a direct purchaser who is seeking monetary damages (pursuant to the private enforcement provisions in the Cartel Act 2005, a private damages claim by the direct pur - chaser is not precluded by the mere fact that the goods or services have been sold on to another buyer). The defendant bears the full burden of proof in arguing a pass-on defence. By contrast, the indirect purchaser benefits from a presump - tion that the overcharge was passed on to it if it can prove the following: • that the defendant committed the infringe - ment; • that the infringement resulted in an over - charge; and • that it purchased goods or services that were affected by the infringement. In Austria, there are no rules that would prevent any evidence from being admissible in a civil action. To the extent that information from an administrative proceeding becomes available to a civil plaintiff, such evidence can be introduced in the civil case. 6.5 Frequency of Completion of Litigation In Austria, there have not been many instance of successful follow-on civil damages claims for cartel conduct that resulted in a damage 6.4 Evidence Obtained From Governmental Investigations/ Proceedings
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