Constitutional Court Decision, G 70/2025 (only in German available)
The Constitutional Court held that Section 35b(4) of the Austrian Cartel Act is constitutional. Companies must therefore continue to bear the costs of translations where documents are served in cross-border cartel proceedings within the European Union.
The case originated from cartel proceedings initiated by the Austrian Federal Competition Authority (AFCA) against three affiliated companies. The Dutch parent company initially refused to accept documents served in German. The Cartel Court therefore arranged for the documents to be translated into Dutch. The translation costs, amounting to approximately EUR 22,600, were initially paid from public funds and subsequently charged to the company concerned.
The company appealed this decision before the Supreme Court. The Supreme Court questioned whether the statutory provision requiring companies to bear translation costs was compatible with the European Convention on Human Rights (ECHR) and the constitutional principle of equality. It therefore referred the matter to the Constitutional Court, requesting the repeal of the relevant provision of the Austrian Cartel Act (Section 35b(4), third sentence, second half-sentence).
In its judgment, the Constitutional Court confirmed that the statutory cost allocation is compatible with both Austrian constitutional law and the guarantees provided under the ECHR. Companies are therefore required to continue reimbursing these translation costs.
No Violation of the Right to a Fair Trial
While cartel fines fall within the scope of the fair trial guarantees of the European Convention on Human Rights, the Constitutional Court held that this does not mean that all safeguards applicable in criminal proceedings apply without limitation to cartel proceedings.
Instead, the procedural guarantees must be applied in a manner appropriate to the specific nature of cartel proceedings. In particular, compliance with Article 6 ECHR must be assessed on the basis of the proceedings as a whole rather than by examining an individual procedural aspect in isolation.
With regard to the provision at issue, the Constitutional Court found that, given the economic circumstances of the companies concerned, the obligation to bear translation costs is not so burdensome as to impair or substantially hinder the company's right of defence.
Objectively Justified Cost Allocation
The Constitutional Court also rejected the allegation that the provision violates the constitutional principle of equality.
The Court held that the specific rules governing translation costs in cross-border cartel proceedings are objectively justified. Furthermore, the associated costs are not disproportionate in relation to the economic significance of such proceedings and therefore do not substantially hinder a company's ability to defend itself.