The Judicial Review of National Competition Law Decisions in Austria (2004-2021)

Abstract

In Austria, the Federal Competition Authority does not adopt its own infringement decisions but needs to apply to the Cartel Court to have a fine imposed or an infringement terminated. For the purposes of Regulation 1/2003, the Cartel Court is therefore designated as a (judicial) national competition authority. Its decisions can be appealed before the Supreme Cartel Court as the second and final instance. Based on an extensive database of all appeals in the public enforcement of the competition law provisions on anti-competitive agreements and abuse of dominance, the present contribution analyses how the judicial review of national competition law decisions has developed in Austria since the entry into force of Regulation 1/2003 on 1 May 2004. It finds that not only is there a relatively low number of appeals, but in addition very few appeals are successful. One successful appeal that stood out over the years was the authority’s appeal of a fine imposed on an infringer that was increased by a factor of ten by the Supreme Cartel Court. Interestingly, the Cartel Court’s decisions in public enforcement almost exclusively focus on hard-core cartels. The application of EU competition law alongside national competition law has firmly established itself in Austria.

Keywords: Antitrust law, comparative antitrust, competition law, enforcement, judicial deference, judicial review, national competition authority, Regulation 1/2003