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
1. AFCA (BWB)
EU Digital Market Act – AFCA cooperates closely with European Commission
“The European Regulation on contestable and fair markets in the digital sector (Digital Markets Act – DMA) entered into force on 1 November 2022. The Act prohibits companies that provide digital platform services and act as so-called gatekeepers from engaging in certain practices that are detrimental to competition. Gatekeepers are digital platforms that provide an important gateway between business users and consumers, and whose position can grant them the power to act as a private rule maker, thus creating a bottleneck in the digital economy."[See more]
AFCA conducts online survey of suppliers to the food industry
"The Austrian Federal Competition Authority (AFCA) launched a sector inquiry into the food industry on 25 October 2022. The current situation of rising prices, supply chain bottlenecks and increasing inflation made a more detailed analysis of the market from a competition perspective necessary. The AFCA has previously also launched (see here) or completed (see here) sector inquiries into other core markets." [See more]
AFCA files application to fine two companies engaged in energy submetering
"Following its investigations into submetering, the Austrian Federal Competition Authority (AFCA) filed another application with the Cartel Court on 16 March 2023 to impose a fine on two additional companies for having infringed national cartel law as well as European competition law. The application is driected against Meßtechnik Gesellschaft m.b.H. & Co KG Energieverrechnung-Contracting-Facility Management and Meßtechnik FMB GmbH Funk- und M-Bus-Technologie." [See more]
AFCA highlights that ban on price cartels also applies to smaller markets and discontinues its investigations into kebab, burger and pizza takeaways
"The Austrian Federal Competition Authority (AFCA) has routinely looked into media reporting that could indicate concerted practices in the field of “Preparing and serving food for immediate consumption or to take away”. Several takeaways in Ried im Innkreis, Upper Austria, were suspected of having engaged in anti-competitive concerted practices." [See more]
AFCA launches inquiry into online food delivery platforms
"Major digital and technology companies with outstanding international market power have been at the centre of public debate in recent years. A debate that has subsequently been picked up by politicians and competition authorities. However, problematic practices are not restricted to big tech. Competition is also an issue on medium-sized platforms that are often targeting more narrowly defined markets" [See more]
AFCA publishes Guidelines on Pre-notification Procedures in Merger Control
"The AFCA has now published Guidelines on Pre-notification Procedures in Merger Control for the first time. The Guidelines explain, among other things, the prerequisites for a pre-notification procedure, the aims, the expediency, and the Federal Cartel Prosecutor’s involvement in this part of merger control proceedings." [See more]
2. GFCO (BKartA)
Examination of Microsoft´s significance for competition across markets
"[…] the Bundeskartellamt has initiated a proceeding against Microsoft to examine whether the company is of paramount significance for competition across markets." [See more]
Bundeskartellamt allows Burda and Funke to establish a joint venture
"Following an in-depth examination, the Bundeskartellamt has cleared the planned participation of Funke Mediengruppe GmbH & Co. KGaA, Essen, in the marketing company BCN Brand Community Network GmbH, Munich, a subsidiary of BurdaVerlag GmbH, Munich." [See more]
Bundeskartellamt safeguards competition in maintenance of "Boxer" wheeled armoured transport vehicles
"Andreas Mundt, President of the Bundeskartellamt: “For the maintenance of “Boxer” wheeled armoured transport vehicles FFG Flensburg and third parties rely on Rheinmetall’s inspection systems. As a result of our proceeding, Rheinmetall contractually agreed to provide the necessary inspection system to FFG Flensburg, which it has already delivered. For the Bundeswehr as a customer it is very important to have as much choice as possible when it comes to the maintenance of its vehicles in order to award contracts in the most economically favourable manner. We are therefore strengthening the principle of competition in this sensitive sector.”[See more]
DFL offers commitments in the 50+1 proceeding
"Andreas Mundt, President of the Bundeskartellamt: “We welcome the commitments offered by DFL, which may represent an important step towards ending the proceeding. In our preliminary assessment, maintaining the basic 50+1 rule and removing the possibility of granting benefactor exemptions can be effective in dispelling our competition law concerns. The changes result in a coherent statutory basis for the uniform application and enforcement of the 50+1 rule as called for by the Bundeskartellamt, while taking into account the sport policy objectives pursued by this rule. With the 50+1 rule DFL intends to maintain the club character of the sport and ensure a certain even balance in sports competition. These sport policy objectives can also be recognised under competition law. In a next step, the other parties to the proceeding – football clubs and investors – are given the opportunity to comment on DFL’s suggestions.” [See more]
3. Austrian Competition Courts
OLG Wien, 25 kt 9/22v – Heise Medien GmbH & Co KG – Mergers (Gun Jumping)
A fine amounting to EUR 18,000.00 is imposed on the defendant pursuant to Section 29 para. 1a in conjunction with Section 17 para. 1 of the Cartel Act for the prohibited implementation of the concentration notified on 14 January 2022 concerning the acquisition of sole control of yeebase media GmbH, Hanover, Germany, which occurred on 14 December 2021, in the period from 14 December 2021 to 11 February 2022. [See more]
Judgment (in German)
OLG Wien 27 Kt 2/22d – Regel- und Steuersysteme AT GmbH (Market sharing)
Under Section 28 para. 1 in conjunction with para. 1a no. 1 of the Cartel Act 2005, the defendant has been found to have participated in an infringement of Section 1 of the Cartel Act by agreeing, under the terms of a contract concluded with R+S Group Regeltechnik und Schaltanlagenbau GmbH, Salzburger Straße 678, 5084 Großgmain, on 11 March 2019, which was effective from 1 January 2019 to 10 February 2020, to divide the Austrian market for measurement, control and regulation technology for buildings between themselves on the basis of the respective project address according to federal state and by specific customers.[See more]
Judgment (in German)
4. EU COM
Mergers: Commission clears acquisition of Photomath by Google
"The European Commission has approved unconditionally, under the EU Merger Regulation, the proposed acquisition of Photomath, Inc. (‘Photomath') by Google LLC (‘Google'). The Commission concluded that the transaction would raise no competition concerns in the European Economic Area (‘EEA'). [See more]
Antitrust: Commission announces Guidelines on exclusionary abuses and amends Guidance on enforcement priorities
"The European Commission has launched a Call for Evidence seeking feedback on the adoption of Guidelines on exclusionary abuses of dominance. In parallel, it has published a Communication (and Annex) amending its 2008 Guidance on enforcement priorities concerning exclusionary abuses." [See more]
Antitrust: Commission carries out unannounced inspections in the energy drinks sector
"On 20 March 2023, the European Commission has started unannounced inspections at the premises of a company active in the energy drinks sector in various Member States.
Mergers: Commission clears the acquisition of VOO and Brutélé by Orange, subject to conditions
"The European Commission has approved, under the EU Merger Regulation, the proposed acquisition of VOO and Brutélé by Orange. The approval is conditional on full compliance with a commitments package offered by Orange." [See more]
DSA: Making the online world safer
"Here are 5 key ways the new DSA will make the digital world a better place for you." [See more]
Antitrust: Commission confirms unannounced inspections in the fragrance sector
"On 7 March 2023, the European Commission carried out unannounced inspections at the premises of companies and an association active in the fragrance industry in various Member States. In parallel, the Commission has sent out formal requests for information to several companies active in the same sector."[See more]
5. EC / ECJ
Judgment of the Court in Case C-449-21 Towercast SASU
"In its judgment, the Court rules that a concentration operation with a non-Community dimension may be subject to a control by the national competition authorities and by the national courts, on the basis of the direct effect of the prohibition of abuse of a dominant position laid down by EU law, having recourse to their own procedural rules for that purpose.
When carrying out such a subsequent control in the light of the prohibition of abuse of a dominant position, the authority in question must verify whether a purchaser who is in a dominant position on a given market and who has acquired control of another undertaking on that market has, by that conduct, substantially impeded competition on that market."[See more]
Judgment of the Court in Case C-682/20 P, Les Mousquetaires and ITM Entreprises v Commission, C-690/20 P Casino, Guichard-Perrachon and Achats Marchandises Casino v Commission and C-693/20 P Intermarché Casino Achats v Commission
"By its judgments today, the Court observes that the Commission is required to record any interview which it conducts in order to collect information relating to the subject matter of an investigation. In that regard, the Court finds that that obligation applies irrespective of whether the interview in question was conductedbefore the formal opening of an investigation, in order to collect indicia of an infringement, or afterwards, for the purpose of collecting evidence of an infringement." [See more]
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Dr. Bernhard Kofler-Senoner, LL.M
+43 1 514 35 581
Dr. Anna Wolf-Posch, LL.M.
+ 43 1 514 35 581
MMag. Dr. Michael Mayer
+ 43 1 514 35 271
Mag. Philipp Schaubach, LL.M.
+ 43 1 514 35 0
Mag. Zakar Stepanyan
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Mag. Agnes Lackenberger, LL.M.
+43 1 514 35
Benno Siftar, LL.M.
+43 1 514 35 586
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