The underlying case concerns the long-term lease of a relatively large area of an existing shopping centre in Wels by a subsidiary of the REWE Group in 2018. On 21 October 2021, the AFCA filed an application for termination of the infringement and imposition of a fine on account of an illegal merger.
On 23 August 2022, REWE retroactively notified the AFCA of the merger. The AFCA and the Federal Cartel Prosecutor did not file for a request for examination, and the merger was therefore cleared after expiry of the respective deadline. The AFCA subsequently changed its application for termination of infringements to an application for findings.
In its negative ruling of 15 May 2023, the Cartel Court stated that the merger had been subject to notification obligations since the merger criteria as defined in the Federal Cartel Act (KartG) were fulfilled and statutory turnover thresholds had been exceeded.
However, the Cartel Court also ruled that REWE, in its capacity of parent company, had only been liable for the merger pursuant to § 7 para. 1 no. 1 KartG since the introduction of § 29 para. 3 KartG by the Cartel and Competition Law Amendment Act 2021. A fine may also be imposed on parent companies that belong to the same economic entity as an undertaking involved in the infringement.
Consequently, REWE was only liable for the period from entry into force of § 29 para. 3 KartG up until clearance of the retroactively notified merger. The Cartel Court also concluded that, in application of § 191 StPO by analogy, it had to refrain from imposing a fine on REWE, specifically because REWE’s fault in the matter was insignificant.
AFCA’s appeal is based on the Cartel Court’s opinion that REWE had only been liable for its subsidiary since the entry into force of § 29 para. 3 KartG and that the conditions for a lack of criminal liability would be met if § 191 StPO were applied analogously. The AFCA opposes both the dismissal of the application for the imposition of a fine and the dismissal of the application for findings.