AUSTRIA Law and Practice Contributed by: Astrid Ablasser-Neuhuber and Sebastian Reiter, bpv Huegel
7.6 “No Poach” and Labour Market Allocation Conduct Although there is no case law, “no poach” agree - ments or labour market allocations are threat - ened by cartel sanctions. 7.7 Leniency v Ex Officio Investigations Leniency applications remain stable at a low vol - ume and typically range from five to 15 per year. 7.8 Domestic v International Investigations The FCA prosecutes a significant number of domestic cases. Although no data is available on a domestic/international shift, cartel cases that are prosecuted by the FCA are more often domestic in nature. 7.9 Environmental, Social and Governance (ESG) Cartels Austria implements ESG mandates and policies by transposing applicable EU law, such as the Corporate Sustainability Reporting Directive or (in the future) the Corporate Sustainability Due Diligence Directive.
For matters that are purely domestic, Section 2 of the Cartel Act 2005 offers “sustainabil- ity exception” to the cartel rules. Agreements between competitors can be exempt from cartel enforcement if they are necessary to significantly contribute to an ecologically sustainable climate- neutral economy without restricting competition completely. Moreover, the Commission’s Hori - zontal Guidelines on Sustainability Agreements are relevant for Austrian practice as well. No governmental agencies have issued specific guidelines on avoiding cartel behaviour while communicating or adopting ESG standards. 7.10 Crisis Cartels Post-pandemic inflationary and supply chain issues have shifted the enforcement focus of the FCA toward the energy and food supply sectors. Whether the current economic climate is condu - cive to cartel behaviour will have to be assessed retroactively.
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