Subject of the investigations
After the City of Vienna Court of Audit had drawn the AFCA’s attention to the matter, the Authority carried out dawn raids at several companies engaged in the joinery/cabinetmaking business in 2019. These companies had allegedly engaged in concerted practices in relation to public contracts in the health sector in particular. Investigations conducted by the AFCA confirmed the suspicion of anti-competitive conduct, with final decisions already having been handed down in relation to the companies Fürst Möbel GmbH, Norer Tischlereigesellschaft m.b.H, Krumböck GmbH and Lechner GmbH.
Course of proceedings
In August 2022, the AFCA applied for the imposition of a fine on Pirkl (press release of 5 August 2022).
The Cartel Court granted the application only in part and imposed a fine of EUR 55,000 for Pirkl’s involvement in anti-competitive infringements in the form of price fixing, market divisions and the exchange of information with competitors in the joinery/cabinetmaking business in Lower Austria and Vienna. The infringements occurred during the period from February 2011 until June 2016.
The fine covered 26 out of the 43 established violations. The Cartel Court dismissed some violations that the AFCA had listed in its application and did not consider them for the fine with reference to the ne bis in idem principle. Imposing a fine would have conflicted with the criminal proceedings already settled by the Central Public Prosecutor for Economic Crime and Corruption (WKStA) or St. Pölten Regional Court through discontinuance or diversion. In addition, the court dismissed AFCA’s alternative application for findings on the same grounds. Both the AFCA and the Federal Cartel Prosecutor filed appeals with the Supreme Cartel Court against this decision.
The Supreme Cartel Court upheld the appeals in full, stating that the case on hand did not constitute a breach of the ne bis in idem principle. The fact that the public prosecutor does not have general sanctioning powers is an argument against the assumption that discontinuance of the investigation proceedings might lead to a ban on resumption of proceedings within the scope of the ne bis in idem principle. Furthermore, even if criminal proceedings ended by a diversion programme were taken as a final conviction or acquittal, this would not constitute a breach of the ne bis in idem principle since a fine under the Cartel Act was a complementary response to various aspects of the same “social problem”. Such a complementary response was possible, referring to rulings by the European Court of Human Rights (ECHR), if “there was a sufficiently close connection between [the two proceedings], in substance and in time”. The KOG considered these conditions met.
With regard to setting the specific amount of a fine, the Supreme Cartel Court ruled that not only the 26 violations already convicted by the Cartel Court but all 43 anti-competitive actions had to be considered for the overall infringement. To determine the exact amount of the fine, the court has now also clarified that this should be based on the business year preceding the issuance of this decision.
The court ultimately raised the total fine to EUR 65,000. It also dismissed Pirkl’s appeal aimed at lowering the imposed fine.
Investigations into joiner cartel concluded
This decision marks the final proceedings relating to the cartel in the field of joinery and cabinetmaking services. In addition to finding that leniency recipient Fürst Möbel GmbH and its parent company had committed an infringement (see press release of 17 June 2022), fines totalling EUR 362,000 have been imposed on four further companies:
- Leniency recipient Norer Tischlereigesellschaft m.b.H: EUR 69,000
- Krumböck GmbH: EUR 128,000 (see press release of 19 October 2022)
- Lechner GmbH: EUR 100,000 (see press release of 22 December 2022)
- Josef Pirkl Gesellschaft m.b.H. u. Co. KG and Josef Pirkl Gesellschaft m.b.H.: EUR 65,000.