Antitrust and Competition Law Amendment Act 2021

On September 10^th, 2021, the Antitrust and Competition Law Amendment Act 2021 came into force. The aim of the Act was to implement the EU “ECN+” Directive 2019/1, to strengthen national competition authorities and to generally modernize antitrust law.

In Austria, there is a general ban on cartels. This prohibits for example agreements between entrepreneurs, joint decisions by associations of entrepreneurs and coordinated approaches that may negatively affect competition. Violations of this ban, such as joint price agreements or coordinated action in public tenders, can result in heavy fines. Porr AG, for example, was recently fined 62.35 million euros for price fixing in the construction industry.

There are exceptions to the ban on cartels if consumers have a “fair share” in the efficiency gains from business cooperation.  A new rule here is that this fair share is to be assumed if the business cooperation makes a significant contribution to an ecologically sustainable, or climate-neutral, economy.

The Cartel Act also regulates mergers of companies, such as company acquisitions, or significant shareholdings. If the revenue of the companies involved exceeds certain thresholds, the mergers have to be registered and could be prohibited.

Previously, the threshold of the total annual revenue in Austria of all the companies involved was 30 million euros. The amendment now introduced a second domestic revenue threshold: Now, a revenue of more than one million euros within Austria each must also be achieved by at least two of the companies involved. The Federal Competition Authority assumes that this “de minimis threshold” will greatly reduce the number of mergers requiring registration.

Here a link to the full text of the Amendment Act (in German).