The Austrian legal regime regulating market dominance is set out in Part II (Sections 4 to 6) of the Austrian Cartel Act (KartG), stipulating the prohibition on abusing a (single or collective) dominant position and retaliation measures imposed by dominant companies against companies initiating cartel court proceedings or lodging a complaint with the Austrian official parties. Furthermore, abusive behaviour of companies having 'relative' market power in relation to their suppliers or customers is also prohibited.
In addition to the general provision prohibiting abuse of a dominant position, Section 5 KartG also contains examples of abusive behaviour: the examples in Section 5 Paragraph 1 Nos. 2 to 4 KartG are based on Article 102 Letters b to d TFEU. Section 5 Paragraph 1 No. 1 KartG does not follow the exact wording of Article 102 Letter a TFEU, but prohibits requesting prices or other conditions that differ from those prices or conditions that would exist under a functioning competitive environment.
Another distinct characteristic of Austrian antitrust law are the specific (rebuttable) statutory presumptions of dominance based on market shares (Section 4 KartG), which are stricter than the market dominance presumptions developed by the EU institutions in the case law of Article 102 TFEU.
In addition, even for companies not holding a dominant position, the Austrian Act on Local Supply and Improvement of Competition Conditions (NahversorgungsG) contains specific provisions governing certain types of unilateral behaviour such as dissimilar trading terms.
In Austria, there exists no formal guidance on the application of the statutory rules on abuse of a dominant position in general. However, guidance can be derived from the case law of the cartel court (Higher Regional Court of Vienna (OLG) and the Supreme Court acting as a higher and appellate cartel court (OGH)). Moreover, the Federal Competition Authority (FCA) has published sector specific notices on market dominance in the field of funeral services2 and motor vehicle distribution,3 and a very specific notice on media cooperation between concert promoters and radio stations.4
No special rules apply to public sector or state-owned enterprises. Thus, Austrian antitrust law also applies to companies entirely or partially, directly or indirectly, owned by the state if these companies carry out an economic activity (functional approach).5 However, special rules apply to certain regulated industries, such as electricity, gas, telecommunications and post, and railway, which are under the jurisdiction of industry-specific national regulatory authorities (e.g., Telekom-Kontrol Kommission, the Regulatory Authority for Broadcasting and Telecommunications, E-Control). In the course of the amendment of the KartG in 2013, the legislator intended to enact specific rules for energy supply companies in a dominant position. However, the parliament's judicial committee in the review process rejected this proposal, as its legal implications were considered premature (apparently, the proposal faced heavy opposition from some Austrian federal states owning incumbent local electricity suppliers).6
II YEAR IN REVIEW
Compared to the number of proceedings initiated by the FCA in previous years in the field of agreements and concerted practices restricting competition, public enforcement in the area of abuse of dominance has been very limited. This might also stem from the fact that in a number of recent cases the FCA has not been successful in arguing its case before the cartel courts; examples include the Taxi app case relating to exclusivity clauses,7 and more recently the Liquid gas tank case relating to tying clauses.8 In both of these cases, the OGH did not follow the FCA's arguments claiming an abuse of a dominant position.
Therefore, it is no surprise that the most recent published case (already dating back to December 2015) in which the OGH found an abuse of a dominant position stems from a proceeding directly instituted by a competitor rather than ex officio by the FCA: in the Old-packaging recycling case, a competitor requested that another competitor be prohibited from abusing its dominant position by offering unprofitable prices for its services (collection and recycling of packaging). The request was granted by the OLG as regards the collection of certain types of packaging, and the OGH subsequently confirmed the finding of an abuse of a dominant position by predatory pricing.9
1 Bernt Elsner and Dieter Zandler are partners and Molly Kos is an attorney at CMS Reich-Rohrwig Hainz Rechtsanwälte GmbH.
2 A German version of the notice is available at https://www.bwb.gv.at/fileadmin/user_upload/PDFs/Standpunkt%20zum%20Bestattungswesen.pdf last accessed 25 April 2018).
3 A German version of the notice is available at https://www.bwb.gv.at/fileadmin/user_upload/PDFs/BWB%20Standpunkt%20KFZ-Vertrieb.pdf (last accessed 25 April 2018).
4 A German version of the notice is available at https://www.bwb.gv.at/fileadmin/user_upload/PDFs/Standpunkt%20-%20Medienkooperationen%20zwischen%20Konzertveranstaltern%20und%20H%C3%B6rfunk.pdf last accessed 25 April 2018).
5 ECJ, judgment of 23 April 1991, case C-41/90 – Höfner und Elser; judgment of 12 July 2012, case C-138/11 – Compass-Datenbank/Republic of Austria; OGH 8 October 2015, 16Ok3/15z.
6 A German version of the judicial committees report is available at https://www.parlament.gv.at/PAKT/VHG/XXIV/I/I_02035/fname_277230.pdf, page 3 (last accessed 25 April 2018).
7 OGH 27 June 2013, 16 Ok 7/12.
8 OGH 1 December 2015, 16 Ok 4/15x.
9 OGH 8 October 2015, 16 Ok 9/15g.
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