Background
The Cartel Court imposed a fine of EUR 45.37 million on two companies from the STRABAG Group on the grounds of illegal price fixing, market divisions and the exchange of information with competitors in relation to public and private tenders in the sector of building construction and civil engineering in Austria during the period from July 2002 to October 2017. STRABAG submitted a comprehensive leniency statement and acknowledged its infringement for use in proceedings before the Cartel Court, as a result of which the AFCA applied for a markedly reduced fine (see AFCA’s press release of 21 October 2021).
The AFCA was subsequently made aware of new facts by the Public Prosecutor's Office for Economic Affairs and Corruption (WKStA) – through the channels of administrative assistance – resulting in the need for a judicial review of the final decision of 21 October 2021; these facts related to full compliance with the obligations under the leniency programme. The AFCA therefore filed an application for amendment requesting that the Cartel Court review and, if necessary, amend its final decision of 21 October 2021 (see AFCA’s press release of 28 July 2022).
In its decision of 20 October 2022 (27 Kt 12/21y-65) the Cartel Court rejected AFCA’s application for amendment. In summary, the Cartel Court stated that there was no explicit statutory regulation, resulting in a loophole, and that the necessary requirements for a review were not met.
Both the AFCA and the Federal Cartel Prosecutor appealed to the Supreme Court of Justice sitting as the Supreme Cartel Court against this decision. The Supreme Court issued a decision on 25 May 2023 (16 Ok 8/22w) upholding the appeal in full, repealing the Cartel Court’s decision of 20 October 2022 (27 Kt 12/21y-65) without replacement and ordering the Cartel Court to continue the proceedings and refrain from considering the original reason for dismissal.
The Supreme Court of Justice specified that the application for amendment filed by the AFCA met the legal requirements and was therefore admissible. Contrary to the Cartel Court’s assessment, it did not have to be dismissed due to the necessary requirements for a review not being met. AFCA’s application for amendment was undoubtedly based on §§ 72 et seq. of the Non-Contentious Proceedings Act (AußStrG) and the application raised no concerns relating to any fundamental rights whatsoever.
The Supreme Court stated: “It cannot not serve the efficacy of the leniency programme if company owners who were granted leniency by knowingly concealing antitrust infringements were protected from appropriate fines if it subsequently transpires that the Federal Competition Authority was not aware of this through no fault of its own.”
The Supreme Court “can also not find that administrative conduct had been constitutionally questionable for reasons of lacking predictability when the Federal Competition Authority uses a statutory legal remedy (application for amendment pursuant to §§ 72 et seq. AußStrG).”
Interim Director General Natalie Harsdorf-Borsch explained: “This is without doubt one of the most important decisions for Austrian antitrust enforcement of the last ten years. Concerted practices relating to tenders are serious offences, and we will continue in our efforts to fight them. The Supreme Court has strengthened the rule of law.”
“The leniency programme under cartel law has been very successful and has contributed to the uncovering of numerous cartels. However, it requires companies to fully cooperate with the AFCA. The Supreme Court has now confirmed this requirement," emphasised Federal Cartel Prosecutor Heinz Majer.
The case will now be continued before the Cartel Court, which will decide on an appropriate fine. In accordance with § 29 of the Federal Cartel Act (KartG), fines of up to a maximum of 10% of the total turnover generated in the preceding business year may be imposed on companies.
The amendment to the Federal Competition Act (WettbG) introduced a leniency programme to Austrian competition law in 2005. Since then, the AFCA has received more than 120 leniency applications. Companies under the leniency programme are required to cooperate with the AFCA truthfully, promptly and without restrictions to fully clarify all aspects of the case as well as submit all evidence of the suspected infringement that is in their possession or available to them.