Decisions of the Cartel Court and the Supreme Cartel Court

Antitrust Law / Private Enforcement

Decisions of the Supreme Cartel Court

Court number:
Subject of the decision:
16 Ok 3/18d
Reduction of the framework fee for the procedure:

The amount of the framework fee is to be determined at your discretion in accordance with § 54 KartG;

Use of the civil procedural flat-rate fee as an "orientation aid" for determining the cartel court framework fee is ruled out.
5 R 29/17d
Determination of expert fees.
16 Ok 3/17b
Referral of a question to the ECJ for a preliminary ruling:
Are Article 3(1)(b) and (4) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings ('ECMR') to be interpreted as meaning that, in the event of a change from sole control to joint control of an existing undertaking, in which the undertaking formerly solely controlling continues to have a joint controlling interest, a concentration is effected only if that undertaking has in the long term all the functions of an independent entity?
ECJ: A concentration is only effected if the resulting joint venture fulfils all the functions of an independent economic entity on a lasting basis.
16 Ok 1/17h
Issue of a house search warrant on well-founded suspicion of agreements contrary to antitrust law in award procedures for construction projects.
25 Ds 1/17i
Disciplinary proceedings against procedural assistants for impairment of honour or reputation (§ 1 (1) second case DSt) and for breach of professional duty (§ 1 (1) first case DSt).
16 Ok 8/16m
Issuing a search warrant on well-founded suspicion of infringements of Article 101 TFEU by means of horizontal price fixing and market and customer allocation.
16 Ok 9/16h
Merger control proceedings concerning the acquisition of a stake in the target company exceeding 25%.
Party status of the target company.
16 Ok 11/16b
The applicability of competition rules is not excluded by the existence of regulatory rules. Rather, the competition rules remain applicable to the extent that there is room for competition within the framework of regulation;
Statutory presumption of market dominance under § 4 (2) KartG.
16 Ok 2/16d
Determination that a merger requiring notification pursuant to §§ 7 ff KartG exists or does not exist or that a merger has been carried out in an illegal manner.
16 Ok 5/16w
A merger is to be prohibited if it is to be expected that a dominant market position (§ 4 KartG 2005) will be created or strengthened as a result (§ 12 Paragraph 1 No. 2 KartG 2005).
Exception: not to be prohibited if it is to be expected that "the merger will also lead to improvements in the conditions of competition which outweigh the disadvantages of market dominance" (§ 12 Paragraph 2 No. 1 KartG 2005). Even if the conditions for justification under § 12 (3) KartG 2005 are not met, the Cartel Court may "associate the statement that the merger is not prohibited with corresponding restrictions or conditions" (§ 12 (3) sentence 1 KartG 2005).
16 Ok 7/16i
Issuance of a warrant for a search of a house on account of
the suspicion of horizontal agreements contrary to cartel law pursuant to Section 1 (1) KartG and Article 101 TFEU as well as Section 1 (4) KartG between the parties in tenders for dry construction services in the building sector;
Barrier to the substantive validity of the dismissal decision.
16 Ok 6/16t
Issue of a house search warrant on suspicion of horizontal agreements contrary to antitrust law:
- According to settled case-law, a suspicion within the meaning of Section 12 of the WettbG is justified if it can be demonstrated in a rational and comprehensible manner for which there must be facts from which it can be reasonably and comprehensibly concluded that there has been an infringement of competition provisions;
- An "urgent" suspicion is neither a prerequisite for a house search under the Cartel Act or Competition Act nor under the Code of Criminal Procedure;
- It is not necessary to take other investigative steps before the house search, such as questioning (no hierarchical order);
- A stricter standard should be applied to the interest in clarifying the facts of the case;
- If a search is ordered between a parent company and a holding company having the same registered office, the search warrant shall be extended to the entire building complex.
16 Ok 1/16g
Observation of the procedure pursuant to § 90a para. 1 GOG
Question referred to the ECJ for a preliminary ruling:
 "Are Article 3(1)(b) and (4) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings ('ECMR') to be interpreted as meaning that, in the event of a change from sole control to joint control of an existing undertaking, in which the previously solely controlling undertaking continues to have a joint controlling interest, a concentration is effected only if that undertaking has in the long term all the functions of an independent entity?
16 Ok 7/15p
Agreements contrary to antitrust law concerning the superordinate market for freight transport and logistics services, in particular the area of cross-border transport logistics;
Penalty character of antitrust fine à cannot be asserted in insolvency proceedings;
Prohibition of innovation under § 66 (2) AußstrG also applies to appeal proceedings under antitrust law;
The innovation permit relates to the grounds of §§ 56 and 58 of the AußstrG and other procedural defects;
Statute of limitations in the event of continued infringement of antitrust law;
According to the European Court of Justice, Art 101 (1) TFEU (Art 81 (1) EC) generally refers to all agreements and concerted practices which distort competition in the internal market, irrespective of the market in which the parties are active, and irrespective of the fact that only the commercial conduct of one of the parties is affected by the terms of the agreement. àIt is therefore not significant that the appellant, in the context of the overall transport, "only" had the route between Chop and the respective destinations, since it acted together with the other parties within the framework of an overall plan.
16 Ok 10/15d 
(16 Ok 11/15a, 
16 Ok 12/15y, 
16 Ok 13/15w)
Issue of a house search warrant on suspicion of vertical price agreements in the area of flour products and horizontal price agreements in the retail trade which are contrary to antitrust law.
16 Ok 4/15x
The mandate to put an end to the abuse of a dominant position presupposes that the abuse continues at the time of the decision.
The tying of tank rent to the exclusive purchasing obligation of the lessee for the duration of the lease is justified on safety grounds and by the fact that the leased gas tanks are owned by the letting LNG company, so that the tying does not constitute an abuse of a dominant position.
16 Ok 1/15f
As a rule, the Cartel Court decides only on application. The principle of investigation (§ 16 (1) AußstrG in conjunction with § 38 KartG) does not authorise an ex officio decision without an application;
Possibility of a block exemption if the market shares of the authorised network are below 30 %;
The discriminatory facts of § 5 (1) 3 KartG or Art 102 lit c TFEU do not include potential customers of the dominant company;
Nor can it be inferred from the general prohibition of abuse (§ 5 (1) sentence 1 KartG) that manufacturers must apply the same conditions to companies outside the distribution network as to authorised workshops with regard to the supply of spare parts;
§ Section 28 (1) KartG only confers on the Cartel Court the competence to determine already terminated infringements of cartel law;
The authority to determine under Section 28 (2) of the KartG relates only to the area covered by the KartG, so that neither an infringement of Article 101 TFEU nor non-compliance with the "conditions for exemption under the Block Exemption Regulation" may be established by the Cartel Court. 
16 Ok 2/15b 
(16 Ok 8/15k)

Infringement of Article 101 TFEU or Article 81 EC and Article 1 KartG, namely vertical sales price coordination with suppliers of dairy products in relation to Kurant and promotional prices.
16 Ok 3/15z
Notification of merger;
Corporate property in antitrust law.
16 Ok 6/15s
Market definition:
Market delineation is in principle a question of fact in so far as it is a question of establishing objectively verifiable delineation criteria and only a question of law in so far as it is a question of assessing the method on which the market delineation is based;
Question as to whether, in the case of a vertical cartel, an additional market definition of the opposite side of the market is necessary in order to be able to examine the existence of an exceptional event pursuant to Section 2 (2) (1) KartG (minor cartel).
16 Ok 9/15g
Although "perceptibility" is an unwritten element of the facts in agreements restricting competition within the meaning of Section 1 of the KartG, it is not an element in the examination of abusive predatory pricing as part of an overall strategy aimed at crowding out or destroying the competitor;
An abusive price undercutting is also given if the prices are above the average variable costs but below the average total costs (fixed costs + variable costs).
16 Ok 5/15v
Rate making:
The joint and several liability of all respondents if an infringement of antitrust law is pursued which is to be assessed as a unit in terms of its substance (in particular with regard to its timing) and legal aspects, may this be realised by different (concerted) practices of several respondents and affect several respondents in different ways;
For the declaratory proceedings pursuant to Section 28 (1) KartG, no separate framework fee is to be set.
16 Ok 8/14h
Market definition for the market distribution channels for free newspapers in Vienna;
Market dominance in the allocation of locations for newspaper withdrawal boxes in the vicinity of underground stations.
16 Ok 7/14m
Obligation to pay court fees for house searches.
4 Ob 234/14m
Social insurance carriers do not act in the course of their business when performing their statutory duties. However, if they also provide services that include co-payments from patients, they do not carry out sovereign but economic activities and thus trade in business transactions. The competition rules therefore apply.
16 Ok 6/14i
Publication of a decision not prohibiting a notified concentration
Interest of the undertaking in the protection of business secrets.