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20th anniversary of competition in Austria − AFCA takes stock and publishes Annual Report 2021

The AFCA − Guarantors of fair competition

The Austrian Federal Competition Authority (AFCA) was founded in July 2002, in accordance with the Federal Act on the Establishment of a Federal Competition Authority (Federal Competition Act − WettbG). The AFCA is an independent and autonomous authority, mandated to take up cases and conduct investigations into infringements of Austrian and European cartel and competition law. From an organisational standpoint, the AFCA is part of the Federal Ministry of Labour and Economy (formerly: Ministry for Digital and Economic Affairs).

“Safeguarding well-functioning competition and application of national (and decentralised application of European) competition rules in a manner consistent with Community law and decision-making by the regulator, achievement of more efficient legal enforcement, simpler and faster procedures through the establishment of the Federal Competition Authority [...].” These were the aims set out in the enclosures to the government bill back in 2002.

Fair competition is one of the key factors in a market economy. Competition boosts quality, innovation and technological progress, ensuring that consumers are supplied with the goods and services they need in the best possible way and that Austrian companies remain internationally competitive.

The AFCA is headed by the Director General for Competition, who makes decisions monocratically and is appointed by the Federal President upon the Federal Government’s proposal for a five-year term of office, following appraisal of their suitability and eligibility as set forth in § 7 WettbG. Walter Barfuß was the Authority’s first Director General, holding this position from 2002 to 2007. Theodor Thanner headed the AFCA as Director General between 2007 and 2021, becoming one of the longest-serving heads of a European competition authority. Deputy Director General and Managing Director Natalie Harsdorf-Borsch has held the position on an interim basis in accordance with the applicable law since December 2021.

20 years of AFCA − The Authority takes stock

The AFCA has been increasingly awarded important powers of investigation over the years, allowing it to fulfil its tasks as competition watchdog in an effective manner.

To date, the AFCA has carried out 170 dawn raids and prepared 12 sector inquiries, it has handled 115 applications for leniency and looked into 184 whistleblower reports.

Since the establishment of the AFCA, the Cartel Court has imposed fines of EUR 322.3 million on businesses for breaches of Austrian and European competition law at the Authority’s request. This total amount of fines is about six times as high as the amount allocated to the AFCA from the federal budget for its running costs in all the years it has existed.

The Authority has also examined 7,000 national mergers, bringing the Federal Government almost EUR 15 million in merger notification fees.

Starting out with 17 employees, the Authority now employs more than 40 people working in three departments and three units.

Sector inquiries

As part of its Sector Inquiry Health, the AFCA published a third interim report: “The Supply of Medicines from a Competition Perspective”. This is a market segment of high relevance, particularly in the midst of a global pandemic. The sector inquiry into electric vehicle charging infrastructure got under way at the end of 2021. The aim is to highlight relevant competition concerns early on in order to avoid negative developments in these markets of the future.

Advocacy

Advocacy was another topic focused on by the AFCA during the past year. The Authority published further position papers on current topics and submitted statements on various legal proposals.

Last year’s Cartel Law Moot Court, organised for the seventh time in a row, was held fully online. All participating students threw themselves into the event, showing off their depth of knowledge.

In summary, 2021 was another very successful year for the AFCA and for competition in Austria. Adherence to competition rules is paramount for fair competition, and the AFCA will continue to monitor such adherence vigilantly.

“I wish to thank the entire staff of the AFCA for their outstanding work in 2021, despite the ongoing pandemic and resulting challenges. My special thanks go to Theodor Thanner, who has shaped and formed competition in Austria during the past 15 years,” concludes Natalie Harsdorf-Borsch.

Publication of annual reports on activities

The publication by national administrative competition authorities of periodic reports on activities to a governmental or parliamentary body is one of the proportionate accountability requirements as defined in Directive (EU) 2019/1, recital 22.

Likewise, in accordance with § 2 para. 4 WettbG, the AFCA is required to “publish a report on its activities in regular intervals, however at least annually. After hearing the Competition Commission, the Federal Minister for Digital and Economic Affairs shall promptly submit this report to the National Council.”

AFCA submitted its Annual Report 2021 to the Federal Ministry for Digital and Economic Affairs and to the Competition Commission for consultation on 3 May 2022. The German version may be downloaded from the following link:

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