Contact: Dieter Hauck and Esther Sowka-Hold; Preslmayr Attorneys at Law (Austria)
Introduction
In 2012 the Federal Competition Authority (FCA) began offering companies a quick way to resolve infringements in the form of settlements. Due to the particularities of Austrian antitrust proceedings (ie, the Cartel Court imposes fines, while the FCA acts as a prosecuting body only), settlement procedures are structured differently from those in other European countries and at the European Commission. For example, in order to settle a fine in Austria, undertakings must formally acknowledge infringements as investigated by the FCA, after which the Cartel Court will issue a decision in line with the FCA's fine application without conducting an evidentiary proceeding. The Cartel Court is bound by law to impose a fine not exceeding the amount applied for by the FCA (which is typically agreed on beforehand by the FCA and the respective undertaking).
Looking at the Cartel Court's published decisions since January 2013, the settlement policy seems to have been successful, as the vast majority of cases (18 out of 22) have been resolved through settlement. However, settlement has not only become a popular option, but also has been heavily criticised due to an apparent lack of information and transparency surrounding decisions. Following these criticisms, the FCA issued guidelines on its settlement policy in September 2014. Although this policy is non-binding, it elaborates on the FCA's legal position and practice when it comes to settlements.
