Affected market: Info.Mail
The Austrian Post’s Info.Mail product category covers items of identical format and weight with advertising content, requiring printed addresses and a minimum volume of at least 400 units. The mailings must also be machine-readable. Info.Mail products are personally addressed, printed marketing materials, i.e. direct marketing mailings in the form of letters such as targeted advertising.
Mail consolidators
Using mail consolidators helps optimise postage costs for the senders but also lowers the processing costs for Austrian Post. For its Info.Mail product, Austrian Post enters into long-term agreements, usually annual contracts, both with mail consolidating companies and self-delivering major customers. These agreements set out the conditions under which discounts are granted when using Austrian Post services. They also specify the shipping terms and discount scales.
Violations
On 23 January 2024, the AFCA filed an application with the Cartel Court to impose an appropriate fine on Austrian Post. This had been preceded by individual court proceedings, in which the AFCA submitted several statements as well as a response to the appeal, finding the discount practices of Österreichische Post AG to be discriminatory and incompatible with competition law. In this context, the Cartel Court found that Austrian Post had abused its dominant position in the market for Info.Mail (see press release of 2 February 2024).
Like all other market participants, the Austrian Post is subject to the general ban on abuse of a dominant market position. It is prohibited for a dominant company to discriminate against contractual partners in competition by applying different business terms to equivalent services.
During the period from 2017 to 20 January 2022, Austrian Post granted mail consolidators limited discount scales, smaller discounts and lower annual bonuses in relation to its Info.Mail charges compared with other major customers that ordered the same annual quantities. It also imposed a confidentiality agreement in connection with Info.Mail discount scales and discounts (annual bonuses) agreed with major customers.
The Cartel Court found that Austrian Post held a share of more than 90% of the Info.Mail market and therefore a dominant position.
The Court stated on the matter of fault that Austrian Post’s different discounts were intended to impede competition, to its own benefit, against the background that it did not favour the market entry of mail consolidators in the Info.Mail segment.
Cooperation
Austrian Post cooperated fully with the AFCA and acknowledged the infringement. The company thereby contributed to a more rapid conclusion of proceedings, as a result of which the AFCA applied for a reduced fine of EUR 9.2 million.
Prior individual proceedings
In 2019, several companies filed an application with the Cartel Court for Austrian Post to terminate abusive conduct based on discriminatory discount practices. Companies are given the opportunity to file their independent applications with the Cartel Court by way of individual proceedings. The companies also applied for interlocutory injunctions. The Cartel Court dismissed their applications for interlocutory injunctions but granted the request for termination of the abusive conduct. Austrian Post disputed the Cartel Court’s decision and lodged an appeal with the Supreme Court sitting as the Supreme Cartel Court. The Supreme Cartel Court rejected the appeal in 2022 (see press release of 13 January 2022).
The AFCA submitted several statements in the individual proceedings as well as a response to the appeal, finding the discount practices of Österreichische Post AG to be discriminatory and incompatible with competition law.
Individual proceedings and proceedings initiated by the AFCA
The Austrian Federal Cartel Act (KartG) allows any undertaking that has a legal or economic interest in a decision to submit its own applications for findings or termination of infringements to the Cartel Court.
Following the conclusion of individual proceedings, fines may only be imposed if the Federal Competition Authority or the Federal Cartel Prosecutor files a corresponding application. After thoroughly investigating the facts of the case, the AFCA deemed it necessary to file such an application, particularly for reasons of general deterrence.