In the course of its investigations into the facade construction industry, the Austrian Federal Competition Authority (AFCA) filed its first application with the Cartel Court on 25 August 2022 to fine one of the investigated companies, NFS Bau GmbH, on account of it having infringed § 1 para. 1 of the Austrian Cartel Act (KartG).
When the Vienna Regional Office of Criminal Investigation (LKA Wien) carried out criminal investigations into companies suspected of certain offences in 2017 and tapped their phones, it found that several invitations to tender for facade construction services appeared to have led to systematic anti-competitive horizontal collusion and the exchange of competitively sensitive information. The Central Public Prosecutor for Economic Crime and Corruption (WKStA) subsequently initiated criminal investigations, cooperating with the AFCA.
Based on the recorded telephone conversations, which the AFCA received from the WKStA in accordance with § 10 para. 1a of the Competition Act (WettbG), the AFCA and the LKA Wien then conducted dawn raids at several companies engaged in facade construction in 2019.
Following a clarifying amendment in relation to administrative assistance between criminal authorities and the AFCA, these were the first investigation proceedings that the AFCA conducted on the basis of phone conversation recordings. The investigations were successful, not least due to the excellent cooperation with the LKA Wien.
AFCA’s investigations confirmed that anti-competitive conduct had occurred. The single and continuous infringement in 2017 took the form of illegal price fixing, market divisions and the exchange of information with competitors. NFS Bau
GmbH has acknowledged the infringement, with the involvement of the Federal Cartel Prosecutor, to bring the proceedings to an amicable conclusion.
The AFCA will file further applications relating to other companies in this sector in the near future.