Austrian OGH Rules on Cartel Fines

Feb 14, 2025 Benn-Ibler Rechtsanwälte

In one of its most recent rulings, the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) ruled on the amount of a fine to be imposed for the unauthorised implementation of a merger under the Austrian Competition Act.

The purpose of such antitrust fines is to achieve both preventive and deterrent effects. In order to achieve the desired deterrent effect, appropriate fines are required.

In the case at hand, a complaint was filed by the Austrian Federal Competition Authority (Bundeswettbewerbsbehörde). A subsidiary of the respondent had leased business premises from the respondent for the operation of a food retail business. The OGH ruled that this lease constituted a merger that would have needed to be posted under the Competition Act, and that the defendant, by forming an economic unit with the subsidiary involved in the merger and by being a participant in the violation, had also infringed the prohibition of implementing agreements under the Competition Act. As a result, the only issue that remains to be decided is the amount of the fine.

The Cartel Court subsequently imposed a fine of EUR 1.5 million on the defendant. Following an appeal by the Federal Competition Authority and the Federal Cartel Prosecutor, the OGH, as the highest cartel court, has now imposed a fine of EUR 70 million.

In the past, the OGH has made it clear on several occasions that it is necessary to impose a certain level of fines in order to effectively combat possible antitrust violations, as is common practice at EU level and in other member states of the European Union.

Based on the Group’s revenues in the preceding financial year, the upper limit of the penalty range was more than EUR 9 bn, or 10% of the revenues in the preceding financial year.

Calculating the fine is a discretionary decision which must also take into account the circumstances of the individual case and the context of the infringement, in addition to the assessment factors listed in the Act. In calculating the fine, the OGH took into account, among other things, the mere violation of a formal requirement, the violation of the prohibition on carrying out a prohibited act, the duration of the infringement of more than four years, the lack of enrichment of the accused, its high economic capacity, the small size of the market concerned, the high market shares of the companies involved and the cooperation of the accused in clarifying the infringement.

OGH 16 Ok 5/24g (28 January 2025)