The European Antitrust Review 2014 Section 3: Country chapters

Austria: Federal Competition Authority

The Austrian Federal Competition Authority (FCA) is very pleased to be able to provide a short overview of its recent activities to the readers of the European Antitrust Review 2014. The FCA strongly believes that the international exchange of knowledge and experience contributes to the development of a truly global competition law. Therefore it is the authority’s dedicated will to communicate with a wide public of practitioners, legal experts and law enforcement authorities.

The authority’s focus: protecting the consumer

Since 2011, and throughout the first half of 2013, the FCA has focused on consumer protection in the retail sector. So far, the authority has based its actions on a comprehensive approach. On the one hand, investigations, trials and fines were used to deploy their deterrent effects in order to stop widespread practices of resale price maintenance (RPM) and trilateral price fixing in different branches of the retail sector. On the other hand, the FCA triggered a process of enhancing prevention and compliance mechanisms in close cooperation with stakeholders, experts and practitioners.

Resale price maintenance and trilateral price fixing in the retail sector

Investigations dating back to 2011 led to the uncovering of widespread practices of trilateral price fixing within the retail sector. Generally, collusive agreements and concerted practices discovered by the authority so far can be summarised as follows: retailers and suppliers engaged in resale price maintenance by agreeing over fixed minimum prices and prices set during sales promotions. These vertical agreements were established between suppliers and retailers in a uniform manner, thereby creating homogenous consumer price levels. In addition retailers informed each other, via their suppliers, about this course of action, creating thus a horizontal concerted practice aimed at observing price-fixing agreements.

The authority has conducted numerous dawn raids in undertakings from different branches of the retail sector, including the corresponding suppliers. The authority focused on, inter alia, the food, electronics and construction material sectors and in several cases could obtain conclusive evidence. Investigations are ongoing and several proceedings have already been triggered. Some of these cases have been brought to court and even recently decided: between July 2012 and January 2013 the Austrian Cartel Court fined four building supplies stores, and one supplier of insulation material, a total of €1.045 million for vertical price-fixing agreements concerning insulation material; in January 2013 the Cartel Court imposed a fine of €1.12 million on the dairy group Berglandmilch for vertical price fixing with food retailers; in March 2013 Philips Austria was fined €2.9 million for vertical price-fixing agreements with retailers; and in May 2013 the REWE Group was ordered to pay a fine of €20.8 million for vertical price-fixing agreements in the food retail sector.

It is also worth noting that, following a reform of the Austrian Competition Law entering into force in March 2013, the Cartel Court’s decision in the REWE case is the first competition-related decision of a court of first instance that is subject to the newly created obligation of publication in the court’s official journal.

Prevention and compliance (advocacy)

While investigations, trials and fines are one way to combat infringements of competition law, the Austrian Federal Competition Authority also encourages undertakings to prevent infringements in advance. Therefore the authority has decided to focus on mechanisms of prevention and compliance and to foster a proactive prevention policy.

In this context, the authority has established a monthly forum on hot topics concerning competition law enforcement in Austria. These ‘Competition Talks’ bring together undertakings, practitioners, experts and agents from the authority and allow them to engage in fruitful discussions. Topics presented up to now have included the reform of the Austrian Competition Law, the conduct of dawn raids and connected legal questions, competition law and media, competition monitoring, vertical restraints/RPM and the new leniency guidelines.

Furthermore, in April 2013 the FCA organised a two-day conference on prevention and compliance. While the first day was open to the general public and designed to address private stakeholders, the second day was reserved for members of competition authorities.

Guidelines for the retail sector

In light of the FCA’s investigations in the retail sector, the need for a more targeted prevention and compliance policy specifically concerning this sector became evident. Hence, in 2013 the authority began to develop its Guidelines on Vertical Price Maintenance and Trilateral Price Fixing Between Suppliers of Branded Goods and Retailers. While working on these guidelines, the authority maintained constant communication with stakeholders and practitioners so as to be able to consider their experiences as well as the idiosyncrasies of the sectors concerned.

International cooperation – gaining and exporting knowledge

In addition to the day-to-day business of the FCA, as depicted above, the authority is very active on an international level. As stated in the introduction, it is the authority’s firm belief that an international exchange of knowledge and experience contributes to the development of a truly global competition law. Also, by means of exchange and twinning programmes, expertise is not only exported but also gained. Consequently, our authority – which has gained a firm foothold in central Europe – has established manifold contacts within the region but also well beyond.

One example of such regional cooperation is the joint Austrian initiative, carried out in collaboration with the Competition Council of Morocco and the United Nations Conference on Trade and Development (UNCTAD), as well as the Euro-Mediterranean partnership, carried out in cooperation with other competition authorities. After an initial round table in Vienna in December 2011 and a meeting in Geneva, Switzerland (UNCTAD’s headquarters) in July 2012, the Competition Council of Morocco hosted a conference in November 2012 in Rabat, Morocco. One result of the Rabat conference was the creation of an informal network called the Euro-Mediterranean Competition Forum.

As regards the FCA’s connections beyond the region, two recently signed cooperation agreements with the Eurasian Economic Commission (December 2012) and the Moroccan Competition Council (November 2012) may serve as examples. Both agreements have already shown practical results. For instance, in April 2013 members of the Moroccan Competition Council came to Vienna within the framework of the agreement in order to participate in a knowledge exchange programme.

The FCA is dedicated to pursuing its international activities and is convinced that the knowledge and expertise gained in this manner will also help to further develop Austria’s national competition policy.

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