This is our monthly summary of a selection of the latest public announcements and decisions concerning Austrian, German and EU competition law. Please bear in mind that we are unable to guarantee the accuracy, relevance, timeliness, or completeness of any information provided on third-party websites.
Type of publication
Industrial sugar cartel: Following the European Court of Justice´s preliminary ruling, the Supreme Cartel Court has allowed the AFCA´s appeal against the applicability of the ne bis idem principle (Supreme Court of Justice sitting as the Supreme Cartel Court)
"The Austrian Federal Competition Authority (AFCA) has won its partial appeal against the Cartel Court’s negative decision in relation to the industrial sugar cartel and the applicability of the ne bis in idem principle. The Supreme Cartel Court (KOG) found in its ruling that sugar producers Nordzucker AG and Südzucker AG engaged in concerted practices and that the setting of the fine imposed on Südzucker AG required further consideration by the first-instance Cartel Court (KG)." [See more]
Construction cartel: AFCA and Federal Cartel Prosecutor appeal against rejection of review of STRABAG decision
"Due to new facts and evidence having come to light, the Austrian Federal Competition Authority (AFCA) applied for a judicial review of the final decision of 21 October 2021, in which two companies from the STRABAG Group were fined EUR 45.37 million. The AFCA is disputing STRABAG’s full compliance with their obligations as a leniency applicant. The Cartel Court rejected AFCA’s application for amendment, against which the AFCA appealed to the Supreme Court of Justice sitting as the Supreme Cartel Court on 22 November 2022". [See more]
AFCA presents results of sector inquiry into EV charging infrastructure: 10 recommendations for fair competition
"The Austrian Federal Competition Authority (AFCA) has conducted a sector inquiry into the electric mobility market, also drawing on the expertise of E-Control." [See more]
AFCA publishes final Guidelines on Sustainability Agreements for companies.
"In accordance with the European Commission’s European Green Deal, the Austrian lawmaker acted on its own initiate and adopted the Cartel and Competition Law Amendment Act in 2021 (KaWeRÄG 2021) to gear cartel and competition law more strongly towards sustainability goals" [See more]
Energy Monitoring Report 2022 published by the Bundesnetzagentur and the Bundeskartellamt
"The Bundeskartellamt and the Bundesnetzagentur have today published the Monitoring Report 2022 on developments in the German electricity and gas markets. The report's data analyses primarily relate to 2021 but also reflect current developments in 2022 because of the particular situation in the energy markets following Russia's invasion of Ukraine". [See more]
Interim report on the sector inquiry into refineries and fuel wholesale
"The Bundeskartellamt has today published an interim report on its ongoing sector inquiry into fuels at the refinery and wholesale level.
Meta (Facebook) responds to the Bundeskartellamt's concerns – VR headsets can now be used without a Facebook account
"Users who want to use the Quest 2 VR headset offered by Meta Quest (formerly Oculus) no longer need a Facebook account to do so. Meta has responded to the Bundeskartellamt’s competition concerns and now also offers the possibility to set up the headset using a separate account, the Meta account. The sale of the headsets in Germany can thus go ahead. This also applies to the new Quest Pro headset." [See more]
Working Group on Competition Economics discusses competitive situation on petrol station and waste disposal markets as well as the digital economy
"Today the Working Group on Competition Economics held its seventh conference. Members of the Bundeskartellamt discussed topical issues of competition economics with experts conducting research in this field." [See more]
Austrian Competition Courts
OLG Wien 24 Kt 1/22k, 23/11/2022 – RPM
A fine of EUR 70,000 is imposed on the defendants in respect of a single complex and continuous infringement of Section 1 of the Cartel Act and Article 101 TFEU, which took the form of vertical agreements with manufacturers of school bags and backpacks concerning resale prices in violation of antitrust law that had as their object the establishment of a fixed and minimum price level for these products and, in individual cases, for accessories, in the period from February 2016 to March 2019.[See more]
Judgment (in German)
OLG Wien 27 Kt 5/18i, 18/11/2022 – Abuse of a dominant position
The Supreme Court, as the court of appeal in antitrust matters, partially upheld the appeal of the defendant Peugeot Austria Gesellschaft mbH, Groß Enzersdorfer-Strasse 59, 1220 Vienna, on the grounds of termination (Section 26 of the Austrian Cartel Act) against the order of the Vienna Higher Regional Court, as the antitrust court.
Judgment (in German)
OLG Wien 28 Kt 9/21i, 09/11/2022 – Merger
The Vienna Higher Regional Court, in its role as the antitrust court for Austria, has decided not to prohibit the merger between Meta (formerly known as Facebook) and the gif platform Giphy. However, this is subject to various conditions. [See more]
Judgment (in German)
Mergers: Commission opens in-depth investigation into the proposed acquisition of Lagardere by Vivendi
"The European Commission has opened an in-depth investigation to assess, under the EU Merger Regulation, the proposed acquisition of Lagardère by Vivendi. The Commission is concerned that the proposed acquisition may reduce competition on a number of markets across the entire book value chain in French-speaking countries of the European Economic Area (EEA) and in a segment of magazine publishing in France." [See more]
Antitrust: Commission fines styrene purchasers EUR 157 million in cartel settlement
"The European Commission has fined Sunpor, Synbra, Synthomer, Synthos and Trinseo a total of €157 million for participating in a cartel concerning purchases on the styrene monomer merchant market. INEOSwas not fined as it revealed the cartel to the Commission under the leniency programme. All six companies admitted their involvement in the cartel and agreed to settle the case." [See more]
Mergers: Commission opens in-depth investigation into the proposed acquisition of eTraveli by Booking
"The European Commission has opened an in-depth investigation to assess, under the EU Merger Regulation, the proposed acquisition by Booking Holdings (‘Booking') of Flugo Group Holdings AB, that operates under the trading name ‘eTraveli'. The Commission is concerned that the proposed acquisition would allow Booking to strengthen its position on the market for accommodation online travel agencies (OTAs)." [See more]
Mergers: Commission opens in-depth investigation into the proposed acquisition of Activision Blizzard by Microsoft
"The European Commission has opened an in-depth investigation to assess the proposed acquisition of Activision Blizzard by Microsoft under the EU Merger Regulation. The Commission is concerned that the proposed acquisition may reduce competition in the markets for the distribution of console and personal computers (‘PCs') video games and for PC operating systems." [See more]
EC / ECJ
Judgment of the Court of Justice in Case C-163/21 AD and Others v PACCAR Inc and DAF TRUCKS NV and DAF Trucks Deutschland GmbH, 10 November 2022
"In its judgment, the Court held that the first subparagraph of Article 5(1) of Directive 2014/104 must be interpreted as meaning that the relevant evidence in the control of the defendant or a third party, the disclosure of which may be ordered by the national courts, is not limited to documents in their possession which already exist, but also covers those documents which the party to whom the request to disclose evidence is addressed must create ex novo by compiling or classifying information, knowledge or data in its possession, subject to strict compliance by those courts with their obligation under paragraphs 2 and 3 of that article to restrict the disclosure of evidence to that which is relevant, proportionate and necessary, taking into account the legitimate interests and fundamental rights of the party to whom the request is addressed." [See more]
Judgment of the General Court in Case T-655/19 Ferriera Valsabbia SpA and Valsabbia Investmenti SpA v EU Commission, 9 November 2022
"Four of the eight undertakings concerned, namely Ferriera Valsabbia SpA and Valsabbia Investimenti SpA, Alfa Acciai SpA, Feralpi Holdings SpA and Ferriere Nord SpA (‘the applicants’), brought actions for annulment of the contested decision, which imposed on them penalties ranging from EUR 2.2 million to EUR 5.1 million. (8) All those actions are rejected by the Fourth Chamber (Extended Composition) of the Court, which, in that context, clarifies the conditions in which the Commission may adopt a decision imposing a penalty almost thirty years after the start of the facts constituting the infringement without prejudicing the rights of defence of the interested parties or infringing the reasonable time principle. The Court also rules on the legality of the scheme governing the interruption and suspension of limitation periods for the imposition of fines and on the conditions in which account is to be taken of repeated infringements in the calculation of the fines." [See more]
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