Contact: Preslmayr Rechtsanwälte (Austria)
On March 1 2013 the long-discussed changes to the Austrian competition laws finally became effective (for further details on the discussion please see
"Ministry proposes material changes to competition laws"). These changes concern, among other things, the leniency programme implemented in Austria in 2006.
In contrast to the existing leniency regime, the amended Competition Act now makes it possible for undertakings to qualify for full immunity from fines on a leniency request even after the Federal Competition Authority has gained knowledge of the reported infringement. According to Section 11(3) of the amended act, the authority may refrain from applying for a fine at the Cartel Court for an undertaking that is the first to present information and evidence that enables the authority to file a founded motion (ie, supported by facts) with the court to:
- conduct a dawn raid; or
- if the authority is already in possession of such information and evidence from a different source, impose a fine.
In both cases, all other conditions must be fulfilled - namely, the respective undertaking must have:
- stopped its participation in the infringement;
- fully and speedily cooperated with the authority in order to investigate the infringement; and
- not forced others to participate in the cartel.
This change thus makes leniency requests for entrepreneurs and undertakings both easier and more difficult. While entrepreneurs and undertakings may still qualify for full immunity from fines at a later stage (ie, after the authority has gained knowledge of the infringement), the law now requires a minimum standard for the information and evidence that must be offered. Such information and evidence must place the authority in a position to be able to submit a founded motion with the Cartel Court.
The application of Section 11(3) has already given rise to discussion among competition law practitioners. Through a literal interpretation of the wording of the act, one undertaking could provide the first information and evidence enabling the authority to file a founded motion for a dawn raid, and a second undertaking could provide the first information and evidence enabling the authority to file a founded motion for imposing a fine. This implies that two leniency applicants could qualify for full immunity from fines.
Read the entire article on the International Law Office website.
