In the wake of the global economic crises triggered by the ongoing COVID-19 crisis, the Austrian Federal Competition Authority (AFCA) expects an increased number of company takeovers in the coming months; however, the number of mergers in 2020 to date has been lower than in previous years. The AFCA holds that it would not be appropriate to relax merger control for such 'shutdown mergers', as merger control is necessary to protect the Austrian market and the country's long-term economic development.
The cartel prohibition applies to activities between independent undertakings; however, it does not apply to activities between a controlling and a controlled undertaking, as such a subsidiary would not enjoy economic independence. This concept is referred to as 'single economic entity', which such a 'family' of undertakings may enjoy. In a recent case, the Supreme Court reviewed the question of whether such a concept would also apply in relation to a jointly controlled undertaking.
Amazon has offered to change its terms and conditions following a series of Federal Competition Authority (FCA) investigations regarding business practices on the 'Amazon.de' marketplace. The FCA conducted an extensive market survey in which approximately 400 of the top-selling Austrian marketplace traders on 'Amazon.de' were interviewed in writing and via telephone. The survey results showed that Amazon had market power for a representative selection of larger Austrian marketplace traders.
A recent Cartel Court decision demonstrates how a long-term relationship between Semperit and a group of Thai companies turned into an equally lengthy disagreement, which came to a decisive turning point in the courts. The final blow landed with a decision by the Federal Cartel Authority, which imposed a fine of €1.6 million on Semperit for violating the Austrian Cartel Act and Article 101 of the Treaty on the Functioning of the European Union.
The Federal Cartel Authority (FCA) recently published for consultation draft guidelines on the good conduct of entrepreneurs. Generally, neither the practices nor the laws as described by the FCA are new. The major issue is fear: smaller and less aggressive enterprises are afraid to lose business if they stand up to their dominant contractual partners in cases where the loss of a contract could lead to their financial collapse.