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Submetering cartel: Decision relating to ista Österreich GmbH final

Following its investigations into submetering, the Austrian Federal Competition Authority (AFCA) filed its first application with the Cartel Court on 8 February 2022 to impose a fine of EUR 2.2 million on one of the investigated companies, ista Österreich GmbH, on account of the company having infringed Article 101(1) TFEU and § 1 para. 1 of the Austrian Federal Cartel Act (KartG) (see also AFCA’s press release of 9 February 2022).

Cartel Court fines ista Österreich GmbH as requested by AFCA

The Cartel Court issued its decision on 1 June 2022 (25 Kt 1/22t), fining ista Österreich GmbH as requested by the AFCA, due to its participation in a single and continuous infringement of Article 101(1) TFEU and § 1 para. 1 KartG. The infringement by the company, the first to be fined, involved the illegal exchange of information, in some cases including collusive arrangements with competitors on prices and terms and conditions by submitting mutual bogus offers, coordinating prices and price increases; specifically, information was exchanged about customer services, costs for disposal, assembly, rescheduled appointments and replacement work, as well as the systematic exchange of sensitive information on, for example, prices, customers, potential customers, business relationships and, in some cases, invitations to tender.

These arrangements were made by Austrian submetering competitors in organised meetings and elsewhere during the period from July 2004 up until February 2019. The decision is final.

ista Österreich GmbH has cooperated continuously and fully under the leniency programme to completely clarify the facts of the case, and has also acknowledged the infringement for use in proceedings before the Cartel Court. The proceedings could therefore be brought to a speedy conclusion. Against this background, the AFCA applied to the Cartel Court for a reduced fine.

The AFCA will file further applications for fines to be imposed on the other companies involved in the cartel in the near future.

Fines for cartels

The Austrian Federal Cartel Act prohibits any behaviour that prevents or distorts competition. This covers price fixing agreements or the division of markets or territories. At the AFCA’s request, the Cartel Court may impose fines of up to 10% of an entity’s total turnover generated in the preceding business year if that entity is found to have breached the rules banning cartels. Fines are assessed on the basis of the gravity and duration of the breach, the degree of fault, and the economic strength and cooperation of the company concerned.