The leniency programme is a highly efficient tool that has been essential for many years to combat breaches of the ban on cartels (§ 1 of the Austrian Cartel Act – KartG, Article 101 TFEU). It is effective in two ways: it helps detect cartels, and it also deters companies from taking part in illegal cartels. Since the leniency programme was introduced in Austria by means of an amendment to the Federal Competition Act (WettbG) in 2005, the Austrian Federal Competition Authority (AFCA) has received 115 applications, eight of which in 2021.
In the interests of transparency, the WettbG also requires the AFCA to publish its implementation of the programme on its website in the form of a handbook.
Changes brought about by the KaWeRÄG 2021
With the Cartel and Competition Law Amendment Act 2021 (KaWeRÄG 2021, Federal Law Gazette No. I 176/2021), § 11b para. 4 WettbG was also amended, giving the Federal Minister for Digital and Economic Affairs the authority to issue a regulation containing more detailed provisions on the application of the leniency programme, in particular provisions on markers and summary applications. The Federal Minister for Digital and Economic Affairs issued this regulation in Federal Law Gazette II No. 487/2021, specifying the application of the leniency programme as set forth in the WettbG in eleven paragraphs (Leniency Regulation, in German). The regulation provides more detailed rules, based on the provisions of Directive (EU) 2019/1, about applications for leniency, markers, summary applications, the form of applications, the leniency applicant’s obligation to cooperate, the reduction of fines and the notice of acceptance.
In accordance with § 7 para. 4 of the above Leniency Regulation, the AFCA is obliged to publish details about the technical handling and the reduction of fines that it intends to apply to applications for a reduced fine in terms of the order in which the undertakings or associations of undertakings making the application are placed. The AFCA complied with this obligation by publishing the paper “Reductions of Fines under the Leniency Programme” (see below).
Handbook on the Leniency Programme
Owing to the amended WettbG and the Leniency Regulation, as well as the obligation imposed on the AFCA pursuant to § 7 para. 4 of the Leniency Regulation, the Authority’s “Handbook on Leniency Programme” (available online) no longer fully reflects the current legal situation. The Handbook is currently being revised and will be published on the AFCA’s website as “Guidance on the Leniency Programme” in the course of 2022, detailing the Authority’s practice in the matter. The “Handbook on Leniency Programme” continues to be available on the website, and may be used by undertakings as a general guide.
The paper “Reductions of Fines under the Leniency Programme” can be downloaded from the following link: