Austria/EU, 2006: Difference between revisions

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'''Score = 27'''
'''Score = 24'''


''Governed by:'' Articles 81 and 82 of the Treaty on European Union, and European Commission Regulations 1/2003 [hereafter "CR 1/2003"] and 139/2004 [hereafter “CR 139/2004], as well as national legislation.<ref>EU statutes and regulations available online from the European Competition  Network, at http://ec.europa.eu/comm/competition/ecn/documents.html</ref>
''Governed by:'' Articles 81 and 82 of the Treaty on European Union [hereafter EU Treaty], and European Commission Regulations 1/2003 [hereafter "CR 1/2003"] and 139/2004 [hereafter “CR 139/2004], as well as national legislation.<ref>EU statutes and regulations available online from the European Competition  Network, at http://ec.europa.eu/comm/competition/ecn/documents.html</ref>
   
   
{| class="wikitable"
{| class="wikitable"
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| Extraterritoriality
| Extraterritoriality
| 1
| 1
| Scope extends to foreign corporations.<ref>Goyder, D. G., EC Competition Law, 4th ed. 2003, at 99.</ref>
| EU law governs whenever conduct has effects on trade between Member States pursuant to Article 3 of Regulation 1/2003.


|- class="categorydivision"
|- class="categorydivision"
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| Fines
| Fines
| 1
| 1
| Articles 13 and 19 of CR 1/2003 allow for fines for serious violations of the EU Competition Act.
| Austrian Competition Law allows prohibited undertakings to be subject to fines.<ref>http://www.globalcompetitionreview.com/ear/austria.cfm</ref> 


|-
|-
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| Prison Sentences
| Prison Sentences
| 1
| 1
| Collusive tendering constitutes a criminal offence under section 168b of Austria's Criminal Code and is punishable by imprisonment of up to three years.  
| Collusive tendering constitutes a criminal offence under section 168b of Austria's Criminal Code and is punishable by imprisonment of up to three years.


|-
|-
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| Private Enforcement
| Private Enforcement
| 3rd Party Initiation
| 3rd Party Initiation
| 1
| 0
| Article 12 says that any interested party can bring a violation to the attention of the Authority.
|  


|-
|-
|  
|  
| Remedies Available to 3rd Parties
| Remedies Available to 3rd Parties
| 1
| 0
| Article 33 allows 3rd parties to file a civil suit for damages.
|  
 
|-
|-
|  
|  
| 3rd Party Rights in Proceedings
| 3rd Party Rights in Proceedings
| 1
| 0
| Article 27(3) of Council Regulation No. 1/2003 affords evidentiary rights to 3rd parties.
|  


|- class="categorydivision"
|- class="categorydivision"
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| Voluntary
| Voluntary
| 0
| 0
|  
|
 
|-
|-
|  
|  
| Mandatory
| Mandatory
| 3
| 3
| Article 7(1) of CR 139/2004 requires notification.<ref>The new merger notification guidelines implemented by Council Regulation 139/2004 give undertakings the ability to request exemption from notification requirements.  However, because a formal request must be submitted and approved in order to gain exemption, the new notification guidelines are encoded here as requiring mandatory pre-merger notification.</ref>
| §9(1) of the Austrian Competition Act requires merger notification in certain instances.
 
|-
|-
|  
|  
| Pre-merger
| Pre-merger
| 2
| 2
| Article 7(1) of 139/2004 requires pre-clearance.
| Secondary source states that mergers must not be implemented before clearance.<ref>http://www.iclg.co.uk/khadmin/Publications/pdf/591.pdf</ref>
 
|-
|-
|  
|  
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| 0
| 0
|  
|  
 
|- class="categorydivision"
|- class="categorydivision"
| Merger Assessment
| Merger Assessment
| Dominance
| Dominance
| 1
| 1
| Article 2(1) of CR 139/2004 considers dominance.
| Cartel Court will assess whether the proposed concentration will create or strengthen a dominant position in the relevant market.
 
|-
|-
|  
|  
| Restriction of Competition
| Restriction of Competition
| 1
| 0
| Article 2(1) of CR 139/2004 considers the interests of intermediate and ultimate consumers.
|
 
|-
|-
|  
|  
| Public Interest (Pro D)
| Public Interest (Pro D)
| 1
| 1
| Article 2(1) of CR 139/2004 considers the development of technical and economic progress.
| Clearance on special grounds will be granted if it can be established that the concentration is indispensable to the international competitiveness of the undertakings concerned and justifiable on macroeconomic grounds.  
 
|-
|-
|  
|  
| Public Interest (Pro Authority)
| Public Interest (Pro Authority)
| 1
| 0
| Article 2(1) of CR 139/2004 considers the interests of intermediate and ultimate consumers.
|
 
|-
|-
|  
|  
| Other
| Other
| 0
| 0
|  
|
 
|-
|-
|  
|  
| Efficiency
| Efficiency
| 1
| 1
| Article 2(1) of CR 139/2004 allows an efficiency defense.
| Clearance on special grounds will be granted if it can be established that the concentration will improve competition in the market in such a way that the advantages outweigh the disadvantages of the creation or strengthening of a dominant position.
|- class="categorydivision"
|- class="categorydivision"
| Dominance
| Dominance
| Limits Access
| Limits Access
| 1
| 1
| Article 82(b) prohibits abuse of a dominant position.
| Article 82(b) of the EU Treaty prohibits abuse of a dominant position.
|-
|-
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| Abusive Acts
| Abusive Acts
| 1
| 1
| Article 82 prohibits abuse of a dominant position.
| Article 82 of the EU Treaty prohibits abuse of a dominant position.


|-
|-
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| Price Setting
| Price Setting
| 1
| 1
| Article 82(a) prohibits price setting.  
| Article 82(a) of the EU Treaty prohibits price setting.  
   
   


Line 132: Line 132:
| Discriminatory Pricing
| Discriminatory Pricing
| 1
| 1
| Articles 81(1)(d), 82(c) prohibit discrimatory conditions.
| Articles 81(1)(d) and 82(c) of the EU Treaty, prohibit discrimatory conditions.
|-
|-
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| Resale Price Maintenance
| Resale Price Maintenance
| 1
| 1
| Article 81 prohibits minimum resale price restrictions.<ref>EC Competition Law, at 97.</ref>  
| Article 81 of the EU Treaty prohibits minimum resale price restrictions.<ref>EC Competition Law, at 97.</ref>  
|-
|-
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| Obstacles to Entry
| Obstacles to Entry
| 1
| 1
| Article 82 prohibits anti-competitive pricing schemes.<ref>Id, at 283.</ref>  
| Article 82 of the EU Treaty prohibits anti-competitive pricing schemes.<ref>Id, at 283.</ref>  
|-
|-
Line 156: Line 156:
| Price Fixing
| Price Fixing
| 1
| 1
| Articles 81(1)(a) prohibits price fixing.
| Articles 81(1)(a) of the EU Treaty prohibits price fixing.
|-
|-
Line 162: Line 162:
| Tying
| Tying
| 1  
| 1  
| Articles 81(1)(e), 82(d) prohibit tying.  
| Articles 81(1)(e) and 82(d) of the EU Treaty prohibit tying.  
|-
|-
Line 168: Line 168:
| Market Division
| Market Division
| 1
| 1
| Article 81 prohibits customer allocation clauses.<ref>Id, at 97.</ref>
| Article 81 of the EU Treaty prohibits customer allocation clauses.<ref>Id, at 97.</ref>
|-
|-
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| Output Restraint
| Output Restraint
| 1  
| 1  
| Article 81(1)(b) prohibits limiting production.  
| Article 81(1)(b) of the EU Treaty prohibits limiting production.  
   
   
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| Market Sharing
| Market Sharing
| 1
| 1
| Article 81(1)(c) prohibits market sharing.  
| Article 81(1)(c) of the EU Treaty prohibits market sharing.  
|-
|-
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| Eliminating Competitors
| Eliminating Competitors
| 1
| 1
| Article 81(1) prohibits agreements that have the purpose or effect of eliminating competition.
| Article 81(1) of the EU Treaty prohibits agreements that have the purpose or effect of eliminating competition.
|-
|-
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| Collusive Tendering/Bid-Rigging
| Collusive Tendering/Bid-Rigging
| 1
| 1
| Article 81 prohibits bid-rigging.
| Article 81 of the EU Treaty prohibits bid-rigging.
|-
|-
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| Supply Refusal
| Supply Refusal
| 1
| 1
| Article 81(1)(b) prohibits supply refusal.
| Article 81(1)(b) of the EU Treaty prohibits supply refusal.
|-
|-
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| Efficiency Defense
| Efficiency Defense
| 1
| 1
| Article 81(3) allows an efficiency defense.
| Article 81(3) of the EU Treaty allows an efficiency defense.
|}
|}

Latest revision as of 23:42, 16 August 2008

Score = 24

Governed by: Articles 81 and 82 of the Treaty on European Union [hereafter EU Treaty], and European Commission Regulations 1/2003 [hereafter "CR 1/2003"] and 139/2004 [hereafter “CR 139/2004], as well as national legislation.[1]

Category Subcategory Score Comment
Scope Extraterritoriality 1 EU law governs whenever conduct has effects on trade between Member States pursuant to Article 3 of Regulation 1/2003.
Remedies Fines 1 Austrian Competition Law allows prohibited undertakings to be subject to fines.[2]
Prison Sentences 1 Collusive tendering constitutes a criminal offence under section 168b of Austria's Criminal Code and is punishable by imprisonment of up to three years.
Divestitures 1 Article 7 of CR 1/2003 allows for structural remedies.
Private Enforcement 3rd Party Initiation 0
Remedies Available to 3rd Parties 0
3rd Party Rights in Proceedings 0
Merger Notification Voluntary 0
Mandatory 3 §9(1) of the Austrian Competition Act requires merger notification in certain instances.
Pre-merger 2 Secondary source states that mergers must not be implemented before clearance.[3]
Post-merger 0
Merger Assessment Dominance 1 Cartel Court will assess whether the proposed concentration will create or strengthen a dominant position in the relevant market.
Restriction of Competition 0
Public Interest (Pro D) 1 Clearance on special grounds will be granted if it can be established that the concentration is indispensable to the international competitiveness of the undertakings concerned and justifiable on macroeconomic grounds.
Public Interest (Pro Authority) 0
Other 0
Efficiency 1 Clearance on special grounds will be granted if it can be established that the concentration will improve competition in the market in such a way that the advantages outweigh the disadvantages of the creation or strengthening of a dominant position.
Dominance Limits Access 1 Article 82(b) of the EU Treaty prohibits abuse of a dominant position.
Abusive Acts 1 Article 82 of the EU Treaty prohibits abuse of a dominant position.
Price Setting 1 Article 82(a) of the EU Treaty prohibits price setting.


Discriminatory Pricing 1 Articles 81(1)(d) and 82(c) of the EU Treaty, prohibit discrimatory conditions.
Resale Price Maintenance 1 Article 81 of the EU Treaty prohibits minimum resale price restrictions.[4]
Obstacles to Entry 1 Article 82 of the EU Treaty prohibits anti-competitive pricing schemes.[5]
Efficiency Defense 0
Restrictive Trade Practices Price Fixing 1 Articles 81(1)(a) of the EU Treaty prohibits price fixing.
Tying 1 Articles 81(1)(e) and 82(d) of the EU Treaty prohibit tying.
Market Division 1 Article 81 of the EU Treaty prohibits customer allocation clauses.[6]
Output Restraint 1 Article 81(1)(b) of the EU Treaty prohibits limiting production.


Market Sharing 1 Article 81(1)(c) of the EU Treaty prohibits market sharing.
Eliminating Competitors 1 Article 81(1) of the EU Treaty prohibits agreements that have the purpose or effect of eliminating competition.
Collusive Tendering/Bid-Rigging 1 Article 81 of the EU Treaty prohibits bid-rigging.
Supply Refusal 1 Article 81(1)(b) of the EU Treaty prohibits supply refusal.
Efficiency Defense 1 Article 81(3) of the EU Treaty allows an efficiency defense.

References

  1. ↑ EU statutes and regulations available online from the European Competition Network, at http://ec.europa.eu/comm/competition/ecn/documents.html
  2. ↑ http://www.globalcompetitionreview.com/ear/austria.cfm
  3. ↑ http://www.iclg.co.uk/khadmin/Publications/pdf/591.pdf
  4. ↑ EC Competition Law, at 97.
  5. ↑ Id, at 283.
  6. ↑ Id, at 97.
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