Austria: KNOETZL's Antitrust Team Discusses Rise In Lawsuits With Austrian Magazine, Trend

Last Updated: 18 September 2018
Article by Katrin Hanschitz, Thomas Voppichler, Bettina Knoetzl, Florian Haugeneder and Patrizia Netal
Most Popular Article in Austria, September 2018

In a recent interview with Trend's Thomas Martinek KNOETZL's dispute resolution experts, Katrin Hanschitz (Partner), Thomas Voppichler (Counsel), Bettina Knoetzl (Partner), Florian Haugeneder (Partner) and Patrizia Netal (Partner) discussed the surge of lawsuits in Austria related to antitrust (competition law) violations.

Bettina Knoetzl highlights that this surge is due to sustained efforts of the European Union against business practices considered to be unfair competition, such as price fixing. The recently implemented EU Damages Directive is expressly designed to foster private enforcement of damage claims by easing access to justice. It allows, for example, a disclosure procedure granting access to otherwise confidential information, shifts the burden of proof to some extent to the accused entity and extends the statute of limitations in favor of a claimant. Bettina Knoetzl cautions that the joint liability of all members of a cartel can beget serious legal and business consequences, including potential financial ruin, even if a party's involvement in cartel-related activity was minimal.

Katrin Hanschitz further noted that, while class action lawsuits as are common in the American legal system are not available in Austria, third party litigation funders are establishing themselves in the market and may well succeed in motivating more claimants to pursue their damage claims against offending cartel members. This trend should not be taken lightly considering that each cartel member is, in principle, liable for the full measure of damage caused by the cartel, i.e. not only the damages to their immediate business partners, but to all the suppliers and customers of all cartel members and, potentially, of all market participants affected. This means that liability can far exceed the profits or revenue obtained in cartel-related transactions, with a cartel member's individual revenue of a few hundred thousand euros potentially leading to damage claims of many millions of euros, plus interest of 9.2% (currently).

As soon as a company first encounters any potential antitrust behavior or learns about its involvement in pending or potential proceedings, Thomas Voppichler recommends that it immediately sets up an action plan outlining a specifically tailored strategy. An internal investigation, an analysis of the seized documents as well as cooperation with authorities should be considered, particularly in cases where a search warrant has been granted and executed. This is the time to call a legal expert, as the company faces fines of up to 10% of its revenue. Accused cartel participants cannot learn quickly enough that there is no substitute for experienced, on-point, independent, professional guidance to help soften the very hard-edged consequences that can arise from an antitrust case being pursued against them.

Arbitration Proceedings and Antitrust Infringements

Florian Haugeneder points out that an infringement of competition law may also be relevant during arbitration proceedings when respondents use such infringements as a shield to render a contract null and void. However, competition law may also serve as a sword, for example, in cases concerning long-term natural gas contracts. Long-term supply contracts of up to twenty years with 'take or pay' obligations are often challenged as market power abuse during arbitration proceedings. By utilizing arbitration in seeking damages for competition law violations, companies have the advantage of selecting experienced arbitrators with specific business and competition law expertise, as court judges often lack this know-how and heavily rely on expert witnesses.

Patrizia Netal added that, with regard to private enforcement, arbitration can offer particular advantages in safeguarding the confidentiality of sensitive business information. The arbitral process is generally more flexible. Rules on document production, for instance, can be tailored according to the parties' agreement. Moreover, arbitrations are often more time efficient compared to court litigation. The 2014 EU Directive on Antitrust Damages Actions explicitly endorses arbitration proceedings for private enforcement claims. Since arbitration is based on mutual consent of the parties the existence of an agreement to arbitrate is crucial; preferably by an explicit provision regarding cases of antitrust claims.

The Principal Witness – What is at Stake?

Partner Katrin Hanschitz and Counsel Thomas Voppichler also explored the pros and cons of co-operating with antitrust authorities utilizing leniency programs.

If anti-competitive behavior has been uncovered, the management has to make a crucial decision: whether to defend itself vigorously against the accusations or, instead, co-operate with the antitrust authorities. If successful, the leniency applicant can ideally — predicated upon its cooperation with the authorities — manage to avoid a fine and, also, a potential criminal conviction. The fact that the applicant was a member of the cartel will, however, be made public.

The risk: If a cartel member discloses facts and evidence in the course of its application for immunity/leniency, these facts and evidence can, to some extent, be used against it in subsequent civil liability proceedings. While the principal witnesses enjoy some privileges, these do not necessarily provide complete protection in all cases. For example, a successful leniency applicant may benefit from a liability reduction: he may be liable only to his own business partners rather than the business partners of all the cartel members. Additionally, the application for leniency may be exempt from disclosure in follow-on civil liability proceedings. However, these privileges only have a restricted scope and are not, for example, (fully) applicable to vertical cartels or to leniency applicants who are not the first to disclose a secret cartel. In summary: informed caution is paramount.

From a compliance perspective, however, there is no doubt that taking steps to disclose violations of competition law that have been uncovered is the advisable choice.

Read the full article in German.

Elevator Cartels

Please also see Katrin Hanschitz' article on The Elevator Cartel and ECJ II: Casting a Wider Net of Private Enforcement exploring the recoverability of state-aid against anti-trust infringers.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions