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06 March 2008
Court proceedings were recently initiated by a party to a contract that contained a clause which infringed antitrust law. The Higher Regional Court of Vienna, as Cartel Court, had to decide whether it had jurisdiction to declare an infringement of antitrust law if the infringement had already been terminated (ie, the illegal clause was declared inapplicable or had been removed from the contract).(1)The applicant argued that it had a justified interest in the declaration as it would enable it to assert its claim for damages in the civil law courts. The Cartel Court decided that it had no such declaratory jurisdiction to decide preliminary questions according to antitrust law for other courts and reasoned its decision as follows. According to EU law, which is explicitly stated to be the model for Austrian legislation, the European Commission may find that an infringement has been committed in the past if the commission has a legitimate interest in doing so.(2) The commission may be said to have a legitimate interest if (i) there is a risk of recurrent infringements and thus a clarification of the legal status seems necessary, or (ii) the case raises new legal questions and it is in the public interest to clarify those questions. According to EU case law, there is no legitimate interest in finding that an infringement has been committed in the past in order to enforce damages claims in the civil law courts.
Section 28(1) of the Austrian Cartel Act empowers the Cartel Court to establish a past infringement of antitrust law if there is a qualified interest in doing so. According to Section 36(4) of the Cartel Act, the official parties and each undertaking with a legal or economic interest are entitled to apply for such a decision. In order for undertakings to exercise their application rights, they must prove individual concern. However, this concern cannot exceed the legal purpose of an official party which intervenes on the grounds of public interest. Further, an official party’s interest in the declaration as a basis only for claims under civil law (eg, a claim for damages) is insufficient.
In conclusion, the Cartel Court stated that it did not have jurisdiction to award damages. Such claims must be enforced by the ordinary courts, which must consider the full extent of the antitrust law.
For further information on this topic please contact Dieter Hauck or Peter Resch at Preslmayr Attorneys at Law by telephone (+43 1 533 16 95) or by fax (+43 1 535 56 86) or by email (firstname.lastname@example.org or email@example.com).
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