Antitrust law


§ Section 37b (1) KartG defines infringements of competition law as an infringement of the prohibition of cartels (Section 1), the prohibition of abuse (Section 5) and the prohibition against retaliatory measures (Section 6) as well as of Articles 101 or 102 TFEU or of such provisions of the national law of a Member State of the European Union or of a State party to the Agreement on the European Economic Area, which pursue predominantly the same objective as Articles 101 and 102 of the TFEU and which, under Article 3(1) of Regulation No 1/2003, apply to the same case and in parallel with Union competition law, with the exception of national legislation imposing criminal sanctions on natural persons where they do not serve as a means of enforcing the competition rules applicable to undertakings.

However, some of the TFEU and the KartG do not fall within this definition. The consequence of this is that for infringements that are not to be subsumed under the definition of § 37b Z 1 KartG, the fifth section is not applicable, but claims for damages can be derived from the infringement of protective laws according to § 1311 ABGB.

The definition of infringement of competition law does not include, in particular, the violation of the prohibition of state aid under Art. 107 TFEU and the other elements of a fine referred to in Art. 29 KartG, namely the non-compliance with subsequent measures under Art. 16, the violation of the prohibition of implementation under Art. 17, the non-compliance with binding commitments under Art. 27, the non-compliance with decisions of the Cartel Court under Art. 19 (3) and incorrect or misleading information in the notification of a merger under Art. 9 KartG. The criminal offences "agreements restricting competition in award procedures" pursuant to § 168b StGB and "inadmissible bidder agreements in executive auction procedures" pursuant to § 292c StGB also do not fall under the definition.

Claims for damages due to violation of these provisions cannot be based on Section 5, but on violations of the protective laws of § 1311 AGBG.

Details can be found in the book Michael BRAND, Schadenersatz im Kartellrecht, starting on page 19.