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Cartels and Restrictive Agreements
Cases
Construction Cartel
In 2024, the Cartel Court imposed several significant fines on additional construction companies for their participation in a nationwide cartel in the Austrian construction sector. The Procedures against several additional construction companies are still ongoing and it is expected that additional fines will be imposed against several additional companies also in 2025.
Austria – Construction Cartel – Overview of Fines
Company
| Fine | |||
| Cartel Court Decision Date | Strabag | EUR 45,370,000 | |
| October 2021 | Porr | EUR 62,350,000[1] | |
| February 2022 | Habau | EUR 26,330,000 | |
| November 2022 | Swietelsky | EUR 27,150,000 | |
| March 2023 | Pittel + Brausewetter | EUR 4,810,000 | |
| May 2023 | Kostmann | Full immunity | |
| June 2023 | Granit | EUR 9,800,000 | |
| November 2023 | Hitthaller + Trixl | EUR 1,360,000 | |
| November 2023 | Gebruder Haider | EUR 3,510,000 | |
| February 2024 | Beyer and Mandlbauer | EUR 1,100,000 | |
| April 2024 | Steiner Bau | EUR 1,300,000 | |
| May 2024 | Froschl | EUR 1,400.000 | |
| June 2024 | Bodner | EUR 1,050,000 | |
| June 2024 | Leyrer + Graf | EUR 5,800,000 | |
| September 2024 | Leithausl | EUR 1,250,000 | |
| September 2024 | Malaschofksy | EUR 98,000 | |
| November 2024 | Status: December 2024 | Waste Disposal Cartel | |
| In October 2024, the Cartel Court granted full immunity to FCC Austria Abfall Service | |||
following FCC’s cooperation under the Austrian leniency programme. The The The alleged Austria-wide waste disposal cartel is suspected to have involved price coordination, market sharing arrangements and the exchange of competitively sensitive information, specifically with regards to the collection and transport of waste.
Abuse of DominanceCases
Peugeot
In September 2024, the Cartel Court imposed a fine of EUR 15 million on Peugeot
for the abuse of its dominant position in the distribution of Peugeot vehicles and spare parts in Austria between 2017 and 2021. The decision follows an earlier decision by the Cartel Appeals Court from April 2021 confirming that Peugeot had abused its dominant position vis-a-vis an independent distributor of Peugeot vehicles (Case 16 Ok 4/20d – Peugeot / Buchl).
Peugeot’s abusive behaviour consisted in several price-related abusive practices vis-a-vis an independent distributor, including price discrimination between Peugeot-owned dealerships and independent distributors resulting in a margin squeeze (i.e., the independent distributor was not able to compete with Peugeot’s own vehicle retail activities), the application of unfair and arbitrary conditions for the calculation of annual bonus payments, the application of excessive and unrealistic sales targets, and forcing the independent distributor to carry out certain warranty repair services below cost. Peugeot’s abusive behaviour also included non-price-related practices such as particularly onerous and unjustified audit procedures for warranty repair services.
The fine of EUR 15 million is the largest fine imposed for an abuse of a dominant position in Austria to date.
Osterreichische Post
In October 2024, the Cartel Court imposed a fine of EUR 9.2 million on Osterreichische Post
(Austrian Post) for the abuse of its dominant position in the distribution of personalised mass mail by applying discriminatory pricing terms to third-party intermediaries between 2017 and 2022 (Case 25 Kt 1/24w – Osterreichische Post). The case follows earlier proceedings in which the Cartel Appeals Court confirmed the abuse by Austrian Post (Case 16 Ok 3/21h – Osterreichische Post).
Third-party intermediaries compete with Austrian Post in the preparation and collection of mass mail (but not in the downstream distribution of mass mail). Austria The The Court however does not rule out that Austrian Post would have been held liable also absent a specific intent to harm competitors.
The fine amount was set by the Austrian Competition Authority (AFCA) and reflects Austrian Post’s cooperation during the proceedings, including Austrian Post’s acknowledgement of the infringement. In case the AFCA requests the Court to impose a specific fine amount, the Court cannot impose a higher fine than requested by the AFCA.
Brau Union
In June 2024, the Austrian Federal Competition Authority (AFCA) requested the Cartel Court to impose a fine on Brau Union
, Austria’s largest brewing company and a subsidiary of the Heineken Group, for the alleged abuse of Brau Union’s alleged dominant position in the wholesale distribution of beer in Austria and for alleged market sharing arrangements and the exchange of competitively sensitive information.
According to the AFCA, Brau Union’s alleged abusive practices include exclusivity agreements with customers, abusive rebate schemes, single branding requirements, and the bundling of Brau Union beverages.
The AFCA requested the Cartel Court to impose an appropriate fine based on the circumstances of the case, i.e., the Court will be able to determine the fine amount on a largely discretionary basis within the statutory limit of 10% of Brau Union’s worldwide revenues. The proceedings before the Cartel Court are ongoing (as of December 2024).
Merger Control
Cases
Lenzing / Palmers / Hygiene Austria
In June and October 2024, the Cartel Court and the Cartel Appeals Court imposed fines of EUR 75,000 on Lenzing and EUR 100,000 on Palmers for having violated the Austrian standstill obligation in connection with the pre-clearance implementation of a joint venture for the production of face masks during the Covid-19 pandemic (Case 28 Kt 2/24i and Case 16 Ok 4/24k).
Lenzing and Palmers notified the intended formation of the Hygiene Austria joint venture to the AFCA on 11 May 2024 and the transaction was granted early clearance on 26 May 2024. However, Lenzing and Palmers were found to have violated the Austrian standstill obligation because the joint venture commenced its operative activities prior to the receipt of the Austrian merger clearance:
Lenzing and Palmers issued a press release
on 24 April 2024 announcing that (i) the Hygiene Austria joint venture had been formed, that (ii) Lenzing and Palmers had invested significant amounts in the acquisition of production infrastructure and raw materials, and that (iii) the joint venture would start producing and marketing face masks as of May 2024.
Employees of Lenzing had been working for the joint venture already as of mid-April.[2]
The parties had acquired new production equipment and entered into raw material supply agreements in the weeks before 24 April 2024 and contributed assets to the joint venture prior to 24 April 2024 and capital on 30 April 2024.
- The joint venture started the production of face masks at the latest at the beginning of May 2024 and potentially already as of 24 April 2024.The Cartel Court accepted that the duration of the infringement – around 1 month – was short. The The Cartel Court considered it as an aggravating circumstance that the parties were aware of the intensive competition for the supply of masks at the time and would have had sufficient time to submit a merger notification and to obtain clearance prior to the implementation of the joint venture.
- Lenzing, in addition, was found to be a recidivist, as it had been previously fined for the infringement of the Austrian standstill obligation in Lenzing / Tencel (2005). According to the Cartel Court, in the absence of an express statutory rule to the contrary, previous infringements of the standstill obligation can never become time-barred, although the Court did not specify what proportion of the fine amount was attributable Lenzing being a recidivist.
- Acerinox / Haynes
On 15 November 2024, the Austrian Federal Competition Authority (AFCA) and the Austrian Federal Cartel Attorney cleared
the acquisition by Acerinox (Spain) of Haynes (USA) in Phase I subject to conditions requested by the Federal Cartel Attorney.
Acerinox and Haynes are producers of specialised alloys, including nickel alloys. The The relevant geographic market was considered to be Europe-wide.
The parties’ combined market share in nickel alloy plates was around 40-50%, with Acerinox accounting for 30-40% and Haynes for 5-10%. The A In addition, the parties were also competing in different price segments, with Haynes focussing on premium specialised alloys, and did not view each other as their closest competitors.
In contrast, the Federal Cartel Attorney, while largely agreeing with the AFCA’s findings, was concerned that certain customers of high-performance alloys – e.g., alloys used for aerospace turbines or offshore gas pipes – would be locked-in with Haynes, potentially enabling the parties to impose significant price increases post-transaction. Although it remains unclear why the Federal Cartel Attorney considered this risk to be transaction-specific, given that there was no direct horizontal overlap between the parties in the high-performance alloy segment. A Hay In addition, Haynes agreed to apply a price cap with respect to its existing customers in the chemicals and oil & gas industries.
Gerresheimer / Bormioli
On 19 November 2024, the Austrian Federal Competition Authority (AFCA) and the Austrian Federal Cartel Attorney cleared the acquisition by Gerresheimer (Germany) of Bormioli (Italy) in Phase I subject to conditions.Gerresheimer and Bormioli are manufacturers of glass and plastic packaging materials for the pharmaceuticals, cosmetics, foods & beverages industries. The Austrian competition authorities found that the transaction would result in significant combined market shares in soda-lime glass for the pharmaceutical industry, a segment that the authorities found to be highly concentrated and characterised by substantial entry barriers.
To address these horizontal concerns, the parties proposed a remedy package comprising (i) the divestiture of a portion of Bormioli’s customer base for soda-lime glass products, including all of Bormioli’s Austrian customers since 2021 as well as selected additional customers in Switzerland, Slovenia, Italy, and Hungary, to a potential new entrant, (ii) the transfer of certain production equipment and know how, (iii) the conclusion of a contract manufacturing agreement for certain soda-lime glass products for a term of 3 years (extendable by 2 years) with that new entrant, and (iv) a one-time contribution to the transferred customers’ switching costs.
Miele / Metall Zug
On 4 June 2024, the Cartel Court cleared the formation of a joint venture between Miele (Germany) and Metall Zug (Switzerland) in Phase II subject to conditions.
Miele and Metall Zug are manufacturers of cleaning and disinfection equipment for hospitals.
The Austrian Federal Competition Authority (AFCA) identified preliminary concerns based on the parties’ high combined market shares and the presence of entry barriers in relation to certain types of cleaning and disinfection equipment for hospitals (specifically high-temperature sterilisation equipment and cleaning equipment for endoscopes). According The support measures offered by Miele and Metall Zug include (i) the payment of an annual fee of EUR 0.7 million to cover the costs of 3 service staff members for a period of three years, (ii) the transfer of one service staff member to Servosan upon Servosan’s request, (iii) the payment of success-based fees to Servosan if Servosan is able to increase the volume of services provided to hospitals during this 3-year period, and (iv) the provision of technical support to Servosan by an independent third-party laboratory.
Swisspor / Creaton
On 21 February 2024, the Cartel Court cleared the acquisition by Swisspor of Creaton’s Austrian roof tiles business in Phase II subject to conditions.
The transaction consists in the divestiture of Creaton’s Austrian business by Wienerberger. This This Wien The The The The Court’s conclusion was based on the assumption that coordination between Swisspor/Creaton and Wienerberger – each holding a market share of more than 30% — d was likely, even though the Court also acknowledged that each of these four suppliers primarily supply different types of roofing products, with Swisspor primarily supplying cement fibre tiles, Wienerberger focussing on clay tiles, BMI on concrete tiles, and Prefa on metal roofing).
To address the Federal Cartel Attorney’s concerns, Swisspor agreed to ensure the implementation of the ancillary commitments previously given by Wienerberger in relation to the Creaton Austria business and to several all existing contractual and other links between Swisspor and Wienerberger.
Sector Inquiries
Electricity and Gas
In August 2024, the Austrian Federal Competition Authority (AFCA) and the Austrian energy regulator E-Control published their second summary report on their ongoing sector inquiry into the Austrian electricity and natural gas retail markets.
The authorities had launched the sector inquiry in January 2023 and published an initial summary report in June 2023 covering the period 2017-2022. That initial report found a high degree of market concentration in the Austrian retail energy markets, significant price increases in that period, and price discrimination between customers both geographically and across customer groups.
The second report, covering the year 2023, confirmed and expanded upon these findings:
Market concentration in the Austrian retail markets for electricity and natural gas continued to increase, as several retail suppliers exited the market between 2022 and 2023.
Most Austrian retail suppliers of electricity and natural gas operate only within their own grid or pipeline network areas and do not serve customers across Austria. After This was largely explained by the fact that most retail suppliers – including those with own production capacity – purchase electricity at market-based wholesale prices from third parties or affiliated group companies.
The extent of the retail price increases however was significantly higher than what would have been justified based on the rise in wholesale prices. The The The
