Austrian Federal Competition Authority
Austria
Abstract Shape Background
Austrian Federal Competition Authority

Austrian Federal Competition Authority

Austria

Austria: from the enforcer

Address: Radetzkyplatz 2, 1st Floor, 1030 Vienna, Austria
Tel: +43 1 245 080
Fax: +43 1 587 42 00
Email: [email protected]
Web: www.bwb.gv.at

Contacts

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Theodor Thanner
Director General
Email: [email protected]

Natalie Harsdorf
Acting Managing Director and Head of Legal Service
Email: [email protected]

Peter Matousek (on temporary leave)
Managing Director
Email: [email protected]

Anastasios Xeniadis
Head of Litigation
Email: [email protected]

Martin Janda
Head of Staff and Special Adviser to the Director General for Competition
Email: [email protected]

Sarah Fürlinger
Spokesperson
Email: [email protected]

Questions and answers

How long is the head of agency’s term of office?

Five years, according to section 6 of the Austrian Competition Act (ACA).

When is he or she due for reappointment?

Reappointment of the director general, pursuant to section 6 of the ACA, is next due in June 2022.

Which posts within the organisation are political appointments?

The director general is appointed by the President on the proposal of the government. The managing director and his deputy are appointed by the Federal Ministry for Digital, Business and Enterprise.

What is the agency’s annual budget?

In 2018, the budget of the Austrian Federal Competition Authority (AFCA) was €4,2million.

How many staff are employed by the agency?

The agency employs 42 staff members in total, including 31 non-administrative staff members (lawyers, economists, public manager, IT expert), six administrative staff members and five management staff members.

To whom does the head of the agency report?

The AFCA publishes an annual report on its activities, which is submitted to the Austrian parliament (section 2, paragraph 4 of the ACA).

Do any industry-specific regulators have competition powers?

In addition to the AFCA, five regulatory authorities have competition powers in Austria. Such authorities exist in the fields of energy, electricity and gas; broadcasting and telecommunications; railroads; and financial market supervision. They may submit applications to the Cartel Court asking for a determination of an infringement or the ending of an infringement.

If so, how do these relate to your role?

The role of these authorities is limited to their respective sectors and does not affect the AFCA’s responsibilities.

Do politicians have any right to overrule or disregard the decisions of the authority?

No, politicians do not have any right to overrule or disregard the decisions of the authority because the AFCA is led by the director general who is independent and free from directives (pursuant to section 1, paragraph 3 of the ACA). However, the budget and staff of the authority are not handled independently from the Federal Ministry for Digital and Economic Affairs

Does the law allow non-competition aims to be considered when taking decisions?

In the area of mergers, diversity of media may be considered as a reason for non-clearance.

Which body hears appeals against the agency’s decisions? Is there any form of judicial review beyond that mentioned above? If so, which body conducts this?

The AFCA is an investigative institution; decisions in cartel cases and abuse of dominance are made by the Cartel Court. The Supreme Cartel Court decides on appeals against these decisions of the Cartel Court. In merger cases, the Cartel Court only reviews a merger if the AFCA or the Federal Cartel Prosecutor applies for Phase II.

Has the authority ever blocked a proposed merger?

The Cartel Court has the ability to block a merger in Phase 2.

However, mergers need to be notified to the AFCA.

In 2019, 495 national merger cases were notified in Austria, an increase of 14 cases compared to 2018. Moreover, 370 EU mergers were reviewed in Austria.

Has the authority ever imposed conditions on a proposed merger?

In 2019, in three cases conditions were imposed on a proposed merger in Phase I.

Has the authority conducted a Phase II investigation in any of its merger filings?

In 2019, there were no Phase II Investigations conducted by the AFCA.

Has the authority ever pursued a company based outside your jurisdiction for a cartel offence?

Yes.

Do you operate a leniency programme? Whom should potential applicants contact?

Yes, the ACA provides a leniency programme. According to section 11(b) of the ACA, the AFCA may refrain from seeking the imposition of a fine for undertakings that discover a cartel or, if the AFCA already knows the facts, it may seek a reduced fine. The leniency programme is a resource-efficient investigative tool; it increases prevention and ensures an effective punishment of cartels. Moreover, transparency has been ensured.

The leniency programme is a proven instrument in Austria: the AFCA has 104 cases of applicants on the leniency programme in total. 21 are pending.

Contact persons for leniency are:

For more information, please visit the homepage and download the handbook on the leniency programme published by the AFCA.

Is there a criminal enforcement track? If so, who is responsible for it?

No. Criminal enforcement is foreseen only in bid-rigging cases. The general public prosecutor would be in charge of this. There is no track record. Furthermore, section 209(b) of the Austrian Criminal Procedure Code (StPO) provides under certain preconditions immunity against criminal proceedings for employees of a company that have made an important contribution to the clarification of an antitrust infringement towards the AFCA.

Are there any plans to reform the competition law?

The Directive (EU) 2019/1 to empower the competition authorities of member states to be more effective enforcers and to ensure the proper functioning on the internal market was signed into law on 11 December 2018 and published in the Official Journal of the European Union on 14 January 2019. The directive aims to ensure that when applying the same legal basis – the EU antitrust rules – national competition authorities have the appropriate enforcement tools in order to bring about a genuine common competition enforcement area. To that end, the proposal provides for minimum guarantees and standards to empower national competition authorities to reach their full potential.

When did the last review of the law occur?

The last review of the law occurred in 2017.

Do you have a separate economics team? If so please give details.

There are six economists. Large cases are processed by a mixed team of lawyers and economists.

Has the authority conducted a dawn raid?

In 2019, the AFCA conducted 24 dawn raids.

Has the authority imposed penalties on officers or directors of companies for offences committed by the company?

No, because there is no legal possibility for the AFCA to impose penalties on officers or directors of companies.

What are the pre-merger notification thresholds, if any, for the buyer and seller involved in a merger?

Not every merger in Austria is notifiable in the AFCA. A merger is only notified if certain thresholds are met or exceeded. The thresholds are set out in section 9 Cartel Act and section 22 Cartel Act.

Mergers require registration with the AFCA if the parties achieved the following revenue in the last fiscal year before the merger:

  • worldwide total of more than €300 million;
  • domestic total of more than €30 million; and
  • for at least two companies around the world, each more than €5 million.

The revenue of media companies and media services is multiplied by 200; and for media auxiliary companies by 20.

Mergers also require notification to the AFCA if:

  • the undertakings concerned achieved an aggregate worldwide turnover of more than €300 million in the last business year preceding the transaction;
  • the undertakings concerned achieved an aggregate domestic turnover of more than €15 million in the last business year preceding the transaction;
  • the value of the transaction is more than €200 million; and
  • the undertaking to be acquired is active to a large extent on the domestic market.

Are there any restrictions on minority investments?

Yes, the direct or indirect acquisition of shares in a company to reach an ownership interest of more than 25 or 50 per cent is regarded as a merger within the meaning of the Cartel Act.

What discounts are available to companies that cooperate with cartel investigations?

There is the possibility to end antitrust cases by settlements. A settlement can be taken into consideration for all proceedings concerning infringements of cartel law or European competition law. The settlement requires the undertaking to provide a settlement submission in which the undertaking confess an infringement. Furthermore, it accepts the legal assessment made by the AFCA as well as the maximum amount of the fine suggested by the AFCA. Such a settlement submission is considered a mitigating circumstance, which may result in a reduction of the requested fine by up to 20 per cent (a ‘settlement reduction’). For more information, visit the homepage and download the handbook on settlements published by the AFCA.

Does the authority conduct criminal investigations and prosecutions for cartel activity? If not, is there another authority in the country that does?

Criminal investigations are governed by criminal law. The federal prosecutors (especially the prosecutors against economic crimes and corruption) fight against cartel crimes.


Austria: from the enforcer's competition economists

Address: Federal Competition Authority (Bundeswettbewerbsbehörde), Radetzkystraße 2, 1030 Vienna, Austria
Tel: +43 1 245 08 0
Fax: +43 1 587 42 00
Email: [email protected]
Web: www.bwb.gv.at

Contacts

Staff

Theodor Thanner
Director General

Peter Matousek
Managing Director (on temporary leave)

Natalie Harsdorf
Acting managing director/Head of Legal Service

Anastasios Xeniadis
Head of Litigation

Agency

Marcus Becka
Mathias Brunner
Lukas Cavada
Teresa Eckhard
Dominik Erharter
Sarah Fuerlinger
Johannes Gruber
Anton Hartl
Yara Hofbauer
Alexandra Ivanova
Alexander Koprivnikar
Beatrix Krauskopf
Markus Lindner
Anna Luger
Gerlinde Padlewski
Kerstin Pitzl
Lisa Pötzelsberger
Matthias Ranftl
Stefan Ruech
Bernhard Schandel
Birgit Schoißwohl
Lisa Schwarz
Barbara Seelos
Georg Seper
Ralph Taschke
Justin Thanhaeuser
Daniela Trampert-Paparella
Sigrid Tresnak
Gunther Weber
Anna Wurm
Fabian Zimmerer

Secretary

Bettina Edelmann
Daniela Strenn
Sandra Boehmwalder
Isabelle Zlamal

Registry

Peter Lippert
David Holzer

Questions and answers

How many economists do you employ?

Six.

Do you have a separate economics unit, or ‘bureau’?

No.

Do you have a chief economist?

No.

To whom does the chief economist report?

Not applicable.

Does the chief economist have the power to hire his or her own staff?

Not applicable.

How many economists have a PhD in industrial economics?

Two economists have a PhD. A further two economists will soon finish PhDs in industrial economics.

Does the agency include a specialist economist on every case team? If not, why not?

No.  The cooperation between lawyers and economists is very flexible allowing to establish an adequate team adjusted on the requirement of the specific case.

How much economics work is outsourced? What type of work is outsourced?

Owing to our tight budget we have to outsource parts of economics work. But this is more the exception than the rule. The outsourced work concerns mainly studies in sector inquiries.

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