On 17 February 2022, the KG had imposed a fine of EUR 62.35 million on a group of companies for infringing cartel law between July 2002 and October 2017. The infringement involved price fixing, market divisions and the inadmissible exchange of information with competitors in relation to public and private tenders in the sector of building construction and civil engineering.
The intervening party requested access to the Cartel Court files in these proceedings, except for leniency statements and settlement submissions. The Austrian Federal Competition Authority (AFCA) did not object to access being granted to the files, “provided a sufficiently specific legal interest existed.” However, privileged leniency statements and settlement submissions were to be exempted from any granting of access to files. The Federal Cartel Prosecutor agreed to grant the intervening party access in relation to those parts of the files that were not designated as leniency statements or settlement submissions. The group of companies opposed the granting of access to the files.
The KG dismissed the intervening party’s application for access to the files. The intervening party subsequently lodged an appeal with the Supreme Court sitting as the Supreme Cartel Court (KOG).
The KOG rejected the appeal.
With its recent decision (16 Ok 1/23t) the KOG again confirmed its ruling – referring to 16 Ok 1/22s – on third-party access to files in cartel proceedings. The interests of all those concerned needs to be considered on a case-by-case basis. The person requesting access to the files is obliged to state the specific circumstances that would practically prevent or unduly impede them from asserting a claim for damages unless they were given access to the Cartel Court files, despite publication of the decision and considering all other legal means of gleaning information at their disposal, including their own records.
The Supreme Cartel Court ruling is available in Austria’s Legal Information System (RIS): [16 Ok 1/23t]