Karmasin fine upheld
On 9 March 2023, the Austrian Federal Competition Authority (AFCA) filed an application with the KG to impose an appropriate fine on Karmasin (see press release of 13 March 2023). The KG subsequently imposed a fine of EUR 50,000 for bid rigging among competitors in the field of market studies. The infringement lasted from April 2019 to June 2021.
Karmasin lodged an appeal against the KG’s decision, arguing, among other things, that the respective clients had wanted to commission them from the outset and this had therefore not been a real competition situation. The Supreme Cartel Court rejected the appeal, stating that a client’s involvement in bid rigging did not change the fact that the bidders’ competitive freedom of action had been restricted and this had possibly also had an impact on the general market price level for comparable services.
With regard to the contested amount of the fine, the KOG ruled that the KG had explained its reasons in a comprehensible and detailed manner. The KG had considered Karmasin’s wilful actions, the duration of the infringement, as well as the fact that price fixing was one of the severest forms of cartel breaches (“hardcore infringement”) as aggravating factors.
The decision can be found in full here (in German): 16Ok7/23z
Background information opinion research cartel
The AFCA initiated cartel law investigations as a result of its cooperation with the Central Public Prosecutor for Economic Crime and Corruption (WKStA), which had conducted an investigation in the “Sabine Beinschab” criminal case due to suspected anti-competitive concerted practices in the bidding process (§ 168b para. 1 of the Austrian Criminal Code - StGB) around studies and opinion polls. Concerted practices in a bidding process constitute a cartel law infringement and are subject to the national and European ban on cartels. Such “hardcore infringements” are among the most serious violations of cartel law.
The investigations revealed that three companies had entered into anti-competitive arrangements in advance of the award of a total of five (or four) contracts for market research studies for one public and two private clients. According to the findings, the companies coordinated their bids and bid prices in order to induce the client to accept a specific bid, namely the bid submitted by the “cheapest” bidder, KARMASIN RESEARCH & IDENTITY GMBH. The two other competitors involved in these practices often went on to carry out part of these contracts in the capacity of subcontractor.
In March 2023, the AFCA filed applications for fines on KARMASIN RESEARCH & IDENTITY GMBH, BB Research Affairs GmbH in connection with Beinschab Business GmbH, and Edeltraud Geppel-Mikes. The decisions relating to KARMASIN RESEARCH & IDENTITY GMBH and BB Research Affairs GmbH and Beinschab Business GmbH are now final.