By decision of 21.10.2021 (27 Kt 12/21y), the Cartel Court imposed a fine of EUR 45.37 million on two companies of the STRABAG Group (STRABAG) for infringement of section 1 (1) of the Austrian Cartel Act (KartG) and Article 101 (1) of the Treaty on the Functioning of the European Union (TFEU). The decision is based on STRABAG’s single and continuous in the form of illegal price fixing, market sharing and exchange of information with competitors in connection with public and private construction tenders in the field of building construction and civil engineering in Austria in the period from July 2002 to October 2017.
STRABAG had submitted a comprehensive Leniency Statement in accordance with Section 11b of the Austrian Competition Act (WettbG) in the cartel investigation, implemented compliance measures and acknowledging its infringement for use in proceedings before the Cartel Court.. The Austrian Federal Competition Authority (AFCA), with the involvement of the Federal Cartel Prosecutor (BMJ), therefore applied for a reduced fine (see AFCA’s press release of 21.10.2021).
However, in the course of recent criminal investigations by the Public Prosecutor's Office for Economic Affairs and Corruption (WKStA), the AFCA has now become aware - by way of administrative assistance - of new facts that make a judicial review of the final decision of 21 October 2021 necessary. The review concerns in particular STRABAG's obligation to cooperate truthfully, fully and expeditiously as a leniency applicant pursuant to section 11b (1) 2 of the Competition Act. Inter alia, it must be examined whether STRABAG has failed to disclose evidence and facts despite being aware of them.
Accordingly, the AFCA has now requested the Cartel Court to re-evaluate and, if necessary, amend the final decision of 21.10.2021 pursuant to Section 72 et seqq. Non-Contentious Proceedings Act (AußStrG). Within 4 weeks after becoming aware of new facts, the AFCA has to submit the request for amendment.
"The Leniency Program is the most important instrument for uncovering secret anti-competitive agreements. For this reason, cooperating undertakings may benefit from a reduction in fines up to immunity. However, this far-reaching privilege is only justified if the undertaking meets all legal requirements. Due to the new facts, it is necessary to allow the Cartel Court to re-examine the case," said interim Director General Dr. Natalie Harsdorf-Borsch.