Austria (January 1, 2000)

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Score = 19

Governed by: Federal Act on Cartels and other Restrictions of Competition of 19 October 1988, amended by Cartel Act Amendment 1999 (herein referred to as “Cartel Act”). [1]

Category Subcategory Score Comment
Scope Extraterritoriality 1 § 6(1) of the Cartel Act applies to behavior in a foreign country in so far as it affects the domestic market.
Remedies Fines 1 § 129-133 provide for violations of the Cartel Act to be sanctioned with fines.
Prison Sentences 1 § 129(1) also provides for imprisonment for up to 3 years in certain cases.
Divestitures 1 §35(2) allows divestures in certain situations.
Private Enforcement 3rd Party Initiation 1 A 3rd party can bring a claim against anything that is based on § 1 of the Act against Unfair Competition (UWG)
Remedies Available to 3rd Parties 1 A 3rd party can assert civil claims IF they have suffered a damage caused by a punishable act.
3rd Party Rights in Proceedings 0 3rd parties are not entitled to request a 2nd phase investigation or challenge decisions of the court and have no access to evidence.
Merger Notification Voluntary 0
Mandatory 3 § 42a(1) says if the companies made a certain combined income in the previous year, they must apply to the cartel court.
Pre-merger 0
Post-merger 1 §42a(5) says that the Cartel Court shall determine whether the concentration WAS implemented in a prohibited manner (sounds like post…)
Merger Assessment Dominance 1 §42b(2)(2) The Cartel Court shall prohibit the concentration if it will strengthen the market dominating position.
Restriction of Competition 0


Public Interest (Pro D) 1 The effect on the national economy and public interest is investigated when deciding whether to grant an exception (see §42b(3))
Public Interest (Pro Authority) 0
Other 0
Efficiency 0
Dominance Limits Access 1 § 35(1)(2) prohibits the restriction of production, sales, or development to the detriment of the consumer.
Abusive Acts 1 § 35(1) lists several punishable abusive acts.
Price Setting 1 § 35(1)(1) prohibits the direct or indirect enforcement of unreasonable prices.
Discriminatory Pricing 1 § 35(1)(3) identifies as abuse the placing of contractual partners at a competitive disadvantage by applying different terms for the provision of equivalent services.
Resale Price Maintenance 0
Obstacles to Entry 0
Efficiency Defense 0
Restrictive Trade Practices Price Fixing 1 § 10(3) identifying a restraint of competition with respect to prices (not per se illegal)
Tying 0
Market Division 1 § 23(1) per se prohibits arrangements under which the parties agree that they shall only market certain products.
Output Restraint 1 § 23 (1)(b) does not cartels that require companies to sell products in specifically restricted quantities.
Market Sharing 0
Eliminating Competitors 1 Collective boycotting is prohibited per se by § 23(1).
Collusive Tendering/Bid-Rigging 0
Supply Refusal 1 § 30 prohibits supply boycotts when they cause damage. Collective boycotting is prohibited per se by § 23(1)(c).
Efficiency Defense 1 §23(3) allows cartels when they are justified with respect to the national economy.

References

  1. Austrian Competition Act, Competition Law in the US, its Member States and Switzerland, 955-1012 (v. II, ed. Floris O.W. Vogelaar, Jules Stuyck, Bart L.P. van Reeken, Kluwer Law International: The Hague, The Netherlands, 2000).