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Construction cartel: AFCA and Federal Cartel Prosecutor appeal against rejection of review of STRABAG decision

Due to new facts and evidence having come to light, the Austrian Federal Competition Authority (AFCA) applied for a judicial review of the final decision of 21 October 2021, in which two companies from the STRABAG Group were fined EUR 45.37 million. The AFCA is disputing STRABAG’s full compliance with their obligations as a leniency applicant. The Cartel Court rejected AFCA’s application for amendment, against which the AFCA appealed to the Supreme Court of Justice sitting as the Supreme Cartel Court on 22 November 2022.

Background information

The Cartel Court imposed a fine of EUR 45.37 million on two companies fromthe STRABAG Group on the grounds of illegal price fixing, market divisions and the exchange of information with competitors in relation to public and private tenders in the sector of building construction and civil engineering in Austria during the period from July 2002 to October 2017. Since STRABAG submitted a comprehensive leniency statement and acknowledged its infringement for use in proceedings before the Cartel Court, the AFCA applied for a reduced fine (see AFCA’s press release of 21 October 2021).

The AFCA has subsequently been made aware of new facts by the Public Prosecutor's Office for Economic Affairs and Corruption (WKStA) – through the channels of administrative assistance – resulting in the need for a judicial review of the Court’s final decision of 21 October 2021. The condition in dispute is the obligation of the leniency applicant to cooperate fully. The AFCA therefore filed an application for an amendment requesting that the Cartel Court review and, if necessary, amend its final decision of 21 October 2021 (see AFCA’s press release of 28 July 2022)

Cartel Court rejects AFCA’s application for amendment

In its decision of 20 October 2022 (27 Kt 12/21y-65), the Cartel Court rejected AFCA’s application for amendment citing procedural reasons. In summary, the Cartel Court stated that there is no explicit statutory regulation, resulting in a legal loophole and that the necessary requirements for a review were not met.

AFCA and Federal Cartel Prosecutor appeal

The AFCA and the Federal Cartel Prosecutor appealed against this Cartel Court decision of 20 October 2022 to the Supreme Court of Justice sitting as the Supreme Cartel Court within the prescribed time. The Supreme Cartel Court now needs to examine a number of legal issues in relation to the Cartel Court’s assessment of the case. These issues are, among others:

  • Legal requirements for AFCA’s request
  • Loophole (or not) with reference to § 73 of the Non-Contentious Proceedings Act (AußStrG)
  • Restoration of compliance with statutory provisions, ensuring effective public antitrust law enforcement
  • Consistency of the Cartel Court’s decision in the first instance with Union law.

The Supreme Cartel Court is expected to rule on the appeal within the next few months.

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