On 8 October 2015, the Austrian Supreme Court of Justice (the "Supreme Court") increased the fine against Spar, a food retailer, from € 3 million to € 30 million after upholding an earlier finding of illegal pricing agreements relating to dairy products.
On 26 November 2014, the Higher Regional Court of Vienna (the "Cartel Court") had found that Spar entered into a series of anti-competitive pricing agreements with several suppliers in the dairy products sector between 2002 and 2012, and imposed a fine of € 3 million (proceedings concerning other product groups are still pending). These agreements were found to have both vertical and horizontal aspects. In brief, Spar agreed with the supplier the resale price that Spar would charge and the supplier in turn agreed to communicate this price to Spar's competitors and to induce them to apply it. As such, this amounted to a hub-and-spoke arrangement intended to prevent competition between Spar and its competitors.
On appeal, the Supreme Court upheld the finding of an infringement, but found serious fault with the calculation of the fine. It stated that, under Austrian law, the basic amount of the fine is set by reference to the infringing undertaking's total turnover during the final year of the infringement (in contrast, under the EU's fining guidelines, the basic amount of the fine is set by reference to the turnover affected by the infringement). The Supreme Court held that the EU's fining methodology does not sufficiently account for the undertaking's entire economic capacity and accordingly does not satisfy the requirements of Austrian law. Furthermore, referring to a judgment of the German Federal Supreme Court of 26 February 2013 (see VBB on Competition Law, Volume 2013, No. 4, available at www.vbb.com), the Supreme Court held that the maximum level of a fine, which is 10% of the undertaking's overall turnover in the previous financial year, is not merely a cap but also serves as basis for setting the range of the fine to be taken into account by the Cartel Court.
The Supreme Court stated that a fine of € 3 million accounted for merely 0.0346% of the overall group turnover of Spar, which was € 8.67 billion in 2013 (and of which € 400 million was related to dairy products). In addition, taking into account the objective of deterrence, a fine of € 3 million would only be appropriate if the potential benefits of the infringement did not exceed € 3 million. As the Supreme Court considered this to be completely unrealistic, it increased the fine to € 30 million, which accounted for 0.346% of the group's total turnover in 2013.
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