The European, Middle Eastern and African Antitrust Review 2017

Austria: Federal Competition Authority

20 July 2016

Case handler

The Austrian Federal Competition Authority (FCA) was established as an independent competition authority which is free from directives in 2002. Since 2007 Theodor Thanner has headed the authority as Director General. The main tasks of the FCA are the prosecution of cartels and other forms of anticompetitive practices, the detection of abuses of market dominance and merger control.

In 2015 the FCA focused on investigations in different sectors such as online trade, the food retail industry and the freight forwarding industry. Additionally the authority dealt with cases in the steel trade and ski retail sector. In the field of merger control the FCA discovered competition concerns in the gambling and healthcare industries. In addition, 12 dawn raids were carried out and several applications for fines were brought to the Cartel Court after an intensive investigation process. The Cartel Court also imposed high fines on undertakings because of anticompetitive practices. Fines totalling €34.5 million were imposed in 2015. Therefore the total number of fines the FCA has issued increased to approximately €175 million by the end of 2015. The number of checked merger cases – EU merger cases as well as national cases – increased from 639 in 2014 to 703 cases in 2015.

The FCA was also very active in the field of advocacy both on the national and international level. First of all, six competition talks took place in order to bring together undertakings, lawyers, authorities and other experts in the field of competition law to discuss different competition topics. Secondly, many case handlers of the FCA gave numerous lectures as national experts and published contributions in various journals such as the Austrian Journal for Competition Law.

In order to make it easier for small and medium-sized businesses without their own legal department and in order to secure that these undertakings can operate economically within the current competition rules the FCA also published guidelines on different competition issues such as vertical price fixing, settlements and media cooperation.

On the international level a trilateral meeting between the competition authorities of Germany, Switzerland and Austria was held in Vienna in September 2015 and the European Competition Network cartel working group held a meeting in Vienna in 2015.

Furthermore, for the very first time in Europe a moot court for cartel law students with participants from six Austrian universities was organised by the FCA and its partners. The interest in this event was enormous and the best speaker won a three-month internship at the FCA.

Another focus of the FCA in 2015 was the telecoms sector inquiry in which the effects of the merger between Hutchinson 3G and Orange were examined. The merger was cleared by the European Commission in 2012 with remedies. Results of the inquiry were presented by the FCA together with the Austrian Regulatory Authority for Broadcasting and Telecommunications in March 2016. Generally, both reports conclude that the merger led to significant price increases in 2013 and 2014 for end consumers.

As far as hotel booking platforms are concerned the Authority concluded a remedy package with several booking platforms in 2015. The remedy package was necessary to clear competition concerns.

With regard to the budgetary and staff situation the FCA suffers – as in previous years – from a chronic lack of budgetary and financial resources. According to the European Council recommendation on the National Reform Programme 2015 of Austria, the Council stated that: ‘Compared with competition authorities in other Member States, the Austrian Federal Competition Authority is under-resourced and this impedes more effective action. The budgetary situation has not changed in comparison with previous years and therefore the authority will not be able to increase the number of staff.’

In November 2015 the European Commission launched a consultation process to strengthen national competition authorities (NCAs) and asked the NCAs to share their experience and give feedback to possible legislative measures on the European level. The FCA commented on this consultation process. The independence of NCAs has to be further strengthened to ensure the enforcement of EU competition law. This is why authorities need to be equipped with sufficient resources and staff to fulfil their legal obligations.

Also, the Austrian Competition Commission – a board of experts – stated in its report to the annual report of the FCA that: ‘a Competition Authority with adequate staff and material resources is an essential element for the prevention of damage to the economy by abuse of market power and the creation of cartels. Therefore the legally assigned staff and the financial empowering have to be covered immediately.’

For 2016 the FCA has set various priorities. First, the authority will continue its ongoing proceedings in various industries such as online trade, the food retail industry and the gambling sector; second, the banking sector will be more closely monitored; and  third, a whistleblower platform will be implemented. A bilateral treaty between Austria and Switzerland is also envisaged, which should facilitate the cooperation of the competition authorities of these two countries. The FCA will also dedicate a large part of its daily work to new competition challenges in the field of ‘Digital Economy’ and ‘Big Data’ and a guideline on dawn raids will be published.

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