Austria/EU, 2006

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.

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.
	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.
	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.
	Obstacles to Entry	1	Article 82 of the EU Treaty prohibits anti-competitive pricing schemes.
	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.
	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.