Contact: Dieter Hauck and Esther Sowka-Hold; Preslmayr Attorneys at Law (Austria)
Introduction
During the first quarter of 2014 the Federal Competition Authority (FCA) increased its investigations into the food retail sector, leading to a number of Cartel Court decisions regarding the FCA's applications to impose fines. The applications were based on settlements with companies that had allegedly infringed competition law. As was the case at the end of 2013, the decisions concerned vertical price coordination of food retail companies with their suppliers – this time particularly with breweries.
Although the FCA's settlement practice often speeds up cartel proceedings, it leads to rather opaque decisions, with very short reasoning that shed little light on a company's infringing activity and the legal limits of its conduct.
Regularly, due to difficulties in determining the relevant turnover achieved by the alleged infringement, the FCA and the company which allegedly infringed competition law come to a mutual agreement. In doing so, the company must acknowledge the FCA's accusation and waive its right to pursue any legal remedy against the fine imposed by the Cartel Court. Accordingly, the court's reasons for imposing fines are restricted to the wording of the respective (and short) acknowledgment and naming the cartel participants. Therefore, the recent fine decisions have been limited to a statement that an inadmissible vertical coordination of prices – in particular, special offer prices – took place.(1)
Not even the March 1 2013 amendment to the Cartel Act – which requires the Cartel Court to publish its legally binding decisions on the court's electronic notice board(2) – has substantially increased transparency. Nonetheless, on January 27 2014 the Supreme Court, acting as the Higher Cartel Court, ruled on the scope of the Cartel Court's obligation to publish its fine decisions and highlighted the importance of transparency as the main goal of Section 37 of the Cartel Act.
