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Amendment to Austrian Antitrust Law

The EU Directive on Antitrust Damages Actions (2014/104/EU) was signed into law on 26 November 2014 and published in the Official Journal of the European Union on 5 December 2014.  It contained the requirement to transpose it into national law by December 27, 2016.  The EU Directive requires several changes and adaptions in the Austrian Antitrust Code.  After a longish preparation period, only a couple of days ago the „Kartell- und Wettbewerbsrechts-Änderungsgesetz 2017“, BGBl 56/2017, – Law about Amendments to the Antitrust- and Competition-Code 2017 – was published in the Austrian federal gazette.

The main changes are in particular,

  • Provisions about claims for damages from antitrust violations,
  • Facilitation of the burden of proof for cartel victims and the introduction of statutory duties of disclosure,
  • Improvement of transparency in procedures about antitrust infringements,
  • Assurance of the quality of expert opinions.

The following measures are aimed at supporting the above targets:

  • Claims for damages:
    • There is a statutory presumption that cartels cause damages.
    • Companies involved in a cartel are jointly liable, apart for a few exceptions.
    • Decisions by the Austrian Competition Authority (BWB) about the existence of antitrust violations are legally binding in the subsequent legal proceedings for damages.
    • The claim for damages may not only include direct damages but may also include lost profits as well as interests.
    • The statutory period of limitations regarding the claims for damages is five years beginning with the knowledge of the damages and the perpetrator. The absolute statute of limitations is ten years after which no claims may be brought forward.
  • Evidence:
    • A broader and more differentiated duty of disclosure of evidence is established.
    • When it comes to house searches, companies will be forced through punitive fees to grant access to electronically available data (also on external drives).
  • Proceedings about cartel violations:
    • Decisions of the cartel court may henceforth be challenged also for error of facts, in particular such, which result from an error in an expert opinion, and not only for legal reasons.
    • Legally binding decisions of the cartel court as well as motions for injunctive relief will be published on the website of the Austrian Competition Authority (BWB).
    • Enhancement of the provisions about the leniency program; the Austrian Competition Authority (BWB) can refrain from imposing fines on companies that notified cartel infringements to the competition authority.
  • Control of mergers:
    • New facts requiring mergers to be notified are added. Now, notification is also required for mergers were the participating companies (i) have a combined worldwide turnover of more than € 300 million, (ii) have generated sales in Austria of more than € 15 million, (iii) the value of the consideration exceeds € 200 million (thus no longer only focusing on the turnover), (iv) or where the company to be acquired has significant business activities in Austria.
    • The notification fee has been increased from € 1.500 to € 3.500.
  • Implementation:
    • The law provides for complicated transitional provisions and about its coming into legal effect.