Current antitrust jurisdiction in practice
In the discussion panel, moderated by the recently appointed deputy general manager Mag. Natalie Harsdorf, LL.M, Dr. Georg Zanger, M.B.L.-HSG, RA and Dr. Luca Schicho, LL.M., BWB took part.
9. Competition Talk of the BWB on 25.2.2014
Chance finds in house searches
In the decision "16 Ok 5/13" the issue was discussed: Dealing with chance finds in house searches. Dr. Schicho explained the significant decision points. In the present case the BWB applied for an expansion of the search warrant, due to new arising of suspicious facts, which were recorded by a BWB's note for the file. It is for the BWB to judge, whether new, suspicious facts are taken in already commenced proceeding or to decide to claim it in a new proceeding.
A 200 Million Euro order as a bagatelle cartel
Dr. Zanger refuted with his excellent and humorous prepared presentation the often heard phrase: "Law is a boring matter." His reported decision "16 Ok 6/12" deals with a 200 million euro order for an installation work by the City "Vienna". Dr. Zanger underlined, that the market demarcation was considered harmless by the expert of the first court and by the OGH (Supreme Court). The market share was lower than the threshold pursuant to § 2 Abs 2 Z 1 KartG (bagatelle cartel) and as well hardcore restrictions were included by this provision until the KartÄndG 2012
To conclude it, the 200 Million Euro order would be not covered as bagatelle after the introduction of the antitrust amendment in 2012. The legal representatives involved explained that it was no issue for the cartel court, if there an anti-competitive cartel had existed, as it was clarified by an expert opinion, that the bagatelle threshold fall below pursuant to § 2 Abs 2 Z 1 KartG and no European inter-governmental relation existed. In the followed discussion the issue arose, whether it is essential to establish a second instance.
How much can you count on decisions made by national authorities or on a piece of advice made by a lawyer?
Further on Dr. Zanger presented the significant points of the decision "16 Ok 4/13". Pursuant to Art 5 VO (EG) Nr 1/2003 national authorities are obliged for pursuit and application of the Art 101 and 102 AEUV. Businesses who violate Art 101 AEUV, may receive a fine despite an incorrect decision of a national authority or despite a(n) (incorrect) piece of advice made by a lawyer. Reductions of fines are not possible in connection with hardcore restrictions. An extenuating cause might be a voluntary termination of a cartel.
Ausblick
Der nächste Competition Talk wird am 1. April 2014 zum Thema "Compliance & Kartellrecht Status quo - quo vadis?" stattfinden. Als Diskutanten konnten wir Prof. Dr. Theresia Theurl, Professorin für Volkswirtschaftslehre (lfG Münster), Mag. Karin Mair CFE, Deloitte Österreich, Partnerin & National Leader Forensic sowie Dr. Johannes Willheim, M.B.L.-HSG, LL.M., RA, gewinnen.
Da das Hotel Stefanie bei den Teilnehmern des Talks als Veranstaltungsort großen Zuspruch fand, wird der kommende Competition Talk wieder in dessen Räumlichkeiten abgehalten.
Entscheidung 16 Ok 6/12
Entscheidung 16 Ok 4/13
Entscheidung 16 Ok 5/13
Entscheidung 16 Ok 7/13
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