The Amendment of the Acts Governing Cartels and Competition was passed by Parliament on 30 March 2017 and will, in parts, be retro-actively effective as of 1 May 2017. It will have several consequences for enterprises.
The Amendment is primarily designed to transpose EU Directive 2014/104/EU on certain rules governing actions for damages under national law for infringements of the competition law provisions. The object is to facilitate private enforcement of claims for damages under competition law for consumers and entrepreneurs and to achieve a balance between the private prosecution of a claim and public law enforcement. Key issues are:
- Every natural and legal person is entitled to full damages for an infringement of competition law, including abuse of a dominant market position, comprising both economic losses and lost profit plus interest as of the occurrence of such damage.
- In the case of cartels such a loss is assumed to occur except when disproved.
- The limitation period is at least five years and may be extended by specified proceedings, terminating not earlier than one year after conclusion of such proceedings.
- National courts may order defendants, third parties and competition authorities, upon threat of a fine, to disclose evidence if the plaintiff submits an application that convincingly supports the claim for damages. Complex rules are provided to protect the legal professional privilege and certain documents in government files (such as statements by witnesses for the prosecution).
The (transitional) rules governing the entry into force of the transposition provisions in particular may well produce (legally) interesting constellations: The substantive rules must be applied to the compensation for losses occurred after 26 December 2016. The rules on the extended limitation period must be applied to all claims not yet time-barred on 26 December 2016 (i.e. which necessarily occurred before that date). The procedural rules, especially those on the bindingness of decisions made by the competition authorities and the rules
on the disclosure and use of evidence, must be applied to proceedings commenced after 26 December 2016 which may obviously concern claims arising before that date.
Next to the transposition of the directive, the amendment includes some novelties:
- A 2015 judgment by the Federal Administrative Court made it clear that the Austrian Competition Authority is authorised to search external electronic records that can be accessed from the premises specified in the search warrant. In order to enforce such access, the cartel court may impose fines of up to 5% of the average daily sales reported in the previous business year for each day of default from the date defined in the judgment.
- The rules governing the monitoring of mergers added a purchase price threshold and reduced an existing (domestic) sales threshold. The new provision extends control to mergers that had not been affected before.
- A new provision added to the cartel law was rather unexpected: "Of the fines, € 1.5m are to be dedicated annually to the purposes of the Austrian Competition Authorities and the Consumer Association VKI."
Originally published June 2017
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