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Portrait of Bernt Elsner

Bernt Elsner

Partner

CMS Reich-Rohrwig Hainz
Rechtsanwälte GmbH
Gauermanngasse 2
1010 Vienna
Austria
Languages English, German
Competition & EU

Bernt Elsner is a leading expert in the fields of EU competition/antitrust lawpublic procurement law and public law. He was Managing Partner at CMS from 2004 to 2010. He has more than 24 years of professional experience in Vienna and Brussels.

Elsner advises and represents national and international companies in national and European merger control proceedings, especially cross-border mergers, advises on horizontal antitrust law, especially in the area of bidding cartels, vertical distribution structures, abuse control and state aid law. Here's what he hopes to achieve in the antitrust department: “I want to position CMS as the first port of call for companies seeking comprehensive top advice in merger and antitrust proceedings in multiple European jurisdictions.”

Explaining CMS's biggest asset, he says: “The CMS network offers access to more than 150 antitrust experts in 27 countries and thus significantly greater coverage in Europe than any of our competitors. This is particularly important in the case of house searches, because we can support our clients on site at very short notice thanks to our numerous locations.”
 

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The ‘very fast’, ‘precise’ and ‘pragmatic’ Bernt Elsner heads the team.

Legal 500 2016

Who’s Who Legal describes him as a “sensational lawyer” combining “in-depth knowledge with commercial acumen”.

Who's Who Legal 2015

Memberships & Roles

Bernt Elsner is head of the global CMS Public Procurement Practice Group. In this role, he leads an international team of more than 150 procurement law experts working in 50 offices in 36 countries. He also heads the Austrian practice groups for public procurement law, EU competition law and public law.

  • Vienna Bar Association
  • Antitrust Law Study Association
  • Austrian Society for Building Law and Construction (ÖGEBAU)
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Awards & Rankings

  • Band 1 in Chambers Europe Ranking 2022: “Excellent practitioner Bernt Elsner is well placed to handle complex procurement and tender procedures while also regularly handling review proceedings. He is also sought after for his cross-border capabilities.”
  • Legal 500 lists him as a “leading individual” in Band 1 (2020, 2021) and describes him as a “very professional and knowledgeable lawyer”, with “excellent understanding in procedural and legal matters” (2021).
  • Chambers & Partners invariably list Bernt Elsner in Band 1, calling him a “brilliant procurement lawyer” (2014) who “remains calm in the face of the storm and focused on the really important issues” (2020).
  • IFLR has awarded him “market leader” in the field of energy and infrastructure (2018, 2019), Best Lawyers “Lawyer of the Year for European Law” (2019).
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Publications

Bernt Elsner is the author of six specialist books on public procurement law and numerous book contributions and essays, as well as being co-editor of the Zeitschrift für Vergaberecht und Bauvertragsrecht (Journal for Public Procurement Law and Construction Contract Law), the leading Austrian journal on public procurement law.

“Public procurement law is exciting because it places in tension EU law and national law, public and private law, federal and state law, as well as law, technical planning and operational costing. The complexity of large procurement procedures requires a respectful exchange between different professional disciplines, which requires many years of industry experience.”

  • Elsner/Zandler/Scharf, The Private Competition Enforcement Review: Austria, in Knable Gotts/Schwartz (eds.), The Private Competition Enforcement Review13 (2022).
  • Elsner/Zandler/Horaceck, Chapter 3: Austria, in Dolmans/Mostyn (eds), The Dominance and Monopolies Review8 (2020) 30.
  • Publisher of the CMS Public Procurement Guide (updated 2019).
  • Vergaberecht, in Bergthaler/Grabenwarter (eds.), Musterhandbuch Öffentliches Recht2 (2014).
  • Federal Procurement Act3 (Manz, 2010)
  • Co-editor of the Journal of Procurement Law and Construction Contract Law (since 2001).
  • The new ÖNORM A 2050 (Linde, 2000).
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Lectures list

Bernt Elsner is an active lecturer on public procurement law topics, at the University of Vienna, at numerous public procurement law conferences and seminars. He was the technical director of the MANZ Annual Conference on Public Procurement Law 2019.

  • Annual guest lecturer at the University of Vienna on public procurement law.
  • Expert leader of the annual CMS Public Procurement Forum.
  • Technical Director of the MANZ Annual Conference on Public Procurement Law (2019).
  • Regular speaker at Business Circle's annual conference “Vergabeforum”.
  • Regular speaker at ARS and IMH seminars on public procurement law, competition law and compliance issues.
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Education

  • 1996 - Admitted to the Austrian Bar
  • 1993 - Mag. rer. soc. oec., Business Administration, Vienna University of Economics and Business Administration
  • 1991 - Dr. iur., Law, University of Vienna
  • 1989 - Mag. iur., Law, University of Vienna
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Public Procurement

Bernt Elsner is a partner and head of the CMS-wide Public Procurement Law Practice Group. He is a leading expert in the fields of public procurement law, EU competition/antitrust law and public law. He was Managing Partner at CMS from 2004 to 2010. He has more than 24 years of professional experience in Vienna and Brussels.

Elsner is one of Austria’s leading experts in the dynamic and constantly changing field of public procurement law. His publications and lectures have had a decisive influence on Austrian public procurement law.

Bernt Elsner defines his goals as head of the global CMS Public Procurement practice group as follows: “I want to position CMS as the first port of call for companies seeking comprehensive top advice for tenders in several European jurisdictions.”

“The aim of public procurement law is to provide fair rules for competition that allow contracting authorities to identify the offer with the best value for money. The best solution is the right combination of whole life costs, environmental impact and a sustainable outcome for future generations.”

Elsner advises public contracting authorities on the structuring of complex tenders, advises bidders on their participation in procurement procedures, especially public-private partnerships (PPP projects), and represents them in procurement law disputes. He has extensive experience in tender-related compliance issues. He also has in-depth experience in the construction and infrastructure sectors, healthcare, and the financial, energy and climate change sectors.

Elsner studied law at the University of Vienna and business administration at the Vienna University of Economics and Business Administration. In 1993/94 he worked as a research assistant at the Austrian Constitutional Court for the constitutional judges Prof. Dr. Karl Spielbüchler and Prof. Dr. Karl Korinek. In 1997, he practised European competition law at Cleary Gottlieb Steen & Hamilton in Brussels. 

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"Very experienced player in procurement" Bernt Elsner is a top-level lawyer, praised by sources for his "comprehensive know-how and experience in procurement law."

Chambers Europe, 2017

"Bernt Elsner is highly qualified and knowledgeable in all public procurement matters. But further to that, he has an excellent understanding of legal procedures.”

Legal 500 (2021)

Bernt Elsner commands great respect among peers, with one source describing him as "the doyen of the public procurement scene." Clients observe that he is "well prepared and knows the details," and that he is "very good in negotiations."

Chambers Europe 2016

Memberships & Roles

Bernt Elsner is head of the global CMS Public Procurement Practice Group. In this role, he leads an international team of more than 150 procurement law experts working in 50 offices in 36 countries. He also heads the Austrian practice groups for public procurement law, EU competition law and public law.

  • Vienna Bar Association
  • Antitrust Law Study Association
  • Austrian Society for Building Law and Construction (ÖGEBAU)
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Awards & Rankings

  • Band 1 in Chambers Europe Ranking 2022: “Excellent practitioner Bernt Elsner is well placed to handle complex procurement and tender procedures while also regularly handling review proceedings. He is also sought after for his cross-border capabilities.”
  • Legal 500 lists him as a “leading individual” in Band 1 (2020, 2021) and describes him as a “very professional and knowledgeable lawyer”, with “excellent understanding in procedural and legal matters” (2021).
  • Chambers & Partners invariably list Bernt Elsner in Band 1, calling him a “brilliant procurement lawyer” (2014) who “remains calm in the face of the storm and focused on the really important issues” (2020).
  • IFLR has awarded him “market leader” in the field of energy and infrastructure (2018, 2019), Best Lawyers “Lawyer of the Year for European Law” (2019).
more less

Publications

Bernt Elsner is the author of six specialist books on public procurement law and numerous book contributions and essays, as well as being co-editor of the Zeitschrift für Vergaberecht und Bauvertragsrecht (Journal for Public Procurement Law and Construction Contract Law), the leading Austrian journal on public procurement law.

“Public procurement law is exciting because it places in tension EU law and national law, public and private law, federal and state law, as well as law, technical planning and operational costing. The complexity of large procurement procedures requires a respectful exchange between different professional disciplines, which requires many years of industry experience.”

  • Elsner/Zandler/Scharf, The Private Competition Enforcement Review: Austria, in Knable Gotts/Schwartz (eds.), The Private Competition Enforcement Review13 (2022).
  • Elsner/Zandler/Horaceck, Chapter 3: Austria, in Dolmans/Mostyn (eds), The Dominance and Monopolies Review8 (2020) 30.
  • Publisher of the CMS Public Procurement Guide (updated 2019).
  • Vergaberecht, in Bergthaler/Grabenwarter (eds.), Musterhandbuch Öffentliches Recht2 (2014).
  • Federal Procurement Act3 (Manz, 2010)
  • Co-editor of the Journal of Procurement Law and Construction Contract Law (since 2001).
  • The new ÖNORM A 2050 (Linde, 2000).
more less

Lectures list

Bernt Elsner is an active lecturer on public procurement law topics, at the University of Vienna, at numerous public procurement law conferences and seminars. He was the technical director of the MANZ Annual Conference on Public Procurement Law 2019.

  • Annual guest lecturer at the University of Vienna on public procurement law.
  • Expert leader of the annual CMS Public Procurement Forum.
  • Technical Director of the MANZ Annual Conference on Public Procurement Law (2019).
  • Regular speaker at Business Circle's annual conference “Vergabeforum”.
  • Regular speaker at ARS and IMH seminars on public procurement law, competition law and compliance issues.
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Education

  • 1996 - Admitted to the Austrian Bar
  • 1993 - Mag. rer. soc. oec., Business Administration, Vienna University of Economics and Business Administration
  • 1991 - Dr. iur., Law, University of Vienna
  • 1989 - Mag. iur., Law, University of Vienna
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Public Law

Bernt Elsner is a leading expert in public law, public procurement law and EU competition/antitrust law. He was Managing Partner at CMS from 2004 to 2010. He has more than 24 years of professional experience in Vienna and Brussels.

As a former research assistant at the Austrian Constitutional Court, he has specific experience and expertise in public law matters. He represents clients before various authorities, the Federal and Provincial Administrative Courts, the Constitutional Court, the Administrative Court and the European Courts.

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Practice head Bernt Elsner is ‘a skilled negotiator’ and ‘adaptable’

Legal 500, 2017

Memberships & Roles

Bernt Elsner is head of the global CMS Public Procurement Practice Group. In this role, he leads an international team of more than 150 procurement law experts working in 50 offices in 36 countries. He also heads the Austrian practice groups for public procurement law, EU competition law and public law.

  • Vienna Bar Association
  • Antitrust Law Study Association
  • Austrian Society for Building Law and Construction (ÖGEBAU)
more less

Awards & Rankings

  • Band 1 in Chambers Europe Ranking 2022: “Excellent practitioner Bernt Elsner is well placed to handle complex procurement and tender procedures while also regularly handling review proceedings. He is also sought after for his cross-border capabilities.”
  • Legal 500 lists him as a “leading individual” in Band 1 (2020, 2021) and describes him as a “very professional and knowledgeable lawyer”, with “excellent understanding in procedural and legal matters” (2021).
  • Chambers & Partners invariably list Bernt Elsner in Band 1, calling him a “brilliant procurement lawyer” (2014) who “remains calm in the face of the storm and focused on the really important issues” (2020).
  • IFLR has awarded him “market leader” in the field of energy and infrastructure (2018, 2019), Best Lawyers “Lawyer of the Year for European Law” (2019).
more less

Publications

Bernt Elsner is the author of six specialist books on public procurement law and numerous book contributions and essays, as well as being co-editor of the Zeitschrift für Vergaberecht und Bauvertragsrecht (Journal for Public Procurement Law and Construction Contract Law), the leading Austrian journal on public procurement law.

“Public procurement law is exciting because it places in tension EU law and national law, public and private law, federal and state law, as well as law, technical planning and operational costing. The complexity of large procurement procedures requires a respectful exchange between different professional disciplines, which requires many years of industry experience.”

  • Elsner/Zandler/Scharf, The Private Competition Enforcement Review: Austria, in Knable Gotts/Schwartz (eds.), The Private Competition Enforcement Review13 (2022).
  • Elsner/Zandler/Horaceck, Chapter 3: Austria, in Dolmans/Mostyn (eds), The Dominance and Monopolies Review8 (2020) 30.
  • Publisher of the CMS Public Procurement Guide (updated 2019).
  • Vergaberecht, in Bergthaler/Grabenwarter (eds.), Musterhandbuch Öffentliches Recht2 (2014).
  • Federal Procurement Act3 (Manz, 2010)
  • Co-editor of the Journal of Procurement Law and Construction Contract Law (since 2001).
  • The new ÖNORM A 2050 (Linde, 2000).
more less

Lectures list

Bernt Elsner is an active lecturer on public procurement law topics, at the University of Vienna, at numerous public procurement law conferences and seminars. He was the technical director of the MANZ Annual Conference on Public Procurement Law 2019.

  • Annual guest lecturer at the University of Vienna on public procurement law.
  • Expert leader of the annual CMS Public Procurement Forum.
  • Technical Director of the MANZ Annual Conference on Public Procurement Law (2019).
  • Regular speaker at Business Circle's annual conference “Vergabeforum”.
  • Regular speaker at ARS and IMH seminars on public procurement law, competition law and compliance issues.
more less

Education

  • 1996 - Admitted to the Austrian Bar
  • 1993 - Mag. rer. soc. oec., Business Administration, Vienna University of Economics and Business Administration
  • 1991 - Dr. iur., Law, University of Vienna
  • 1989 - Mag. iur., Law, University of Vienna
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12/05/2022
10 key as­pects of the re­vised EU com­pet­i­tion law in the field of dis­tri­bu­tion...
The new Ver­tic­al Block Ex­emp­tion Reg­u­la­tion (VBER) and the new ac­com­pa­ny­ing Ver­tic­al Guidelines (VGL) were pub­lished on 10 May 2022. The new VBER will enter in­to force on 1 June 2022 and ap­ply for the next twelve years. The new VBER/VGL in­tro­duce sev
CMS Ver­gabeportal

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12/09/2022
CMS Pub­lic Pro­cure­ment Con­tact Card
World-class pub­lic pro­cure­ment spe­cial­ists The qual­ity of pub­lic ser­vices is in­creas­ingly de­term­ined by world-class skills in pub­lic pro­cure­ment. The pro­cure­ment re­gime ap­plies not only to the pub­lic...
13/10/2022
20 Jahre Ver­ga­befor­um | Kon­fer­enz
Ös­ter­reichs größte Platt­form für das öf­fent­liche Auftrag­swesen­Ver­an­stal­ter: Busi­ness Circle
26/08/2022
Pub­lic pro­cure­ment reg­u­la­tion in Aus­tria
Ju­ly 2021 1. Where can one find pub­lic pro­cure­ment no­ti­fic­a­tions? As of 1 March 2019 an­nounce­ments and no­ti­fic­a­tions for Aus­tria have to be pub­lished un­der the link ht­tps://aus­s­chreibun­gen.usp.gv.at/at.gv.bm­dw.eproc-p/pub­lic...
01/08/2022
The Dom­in­ance and Mono­pol­ies Re­view: Aus­tria
The Aus­tri­an com­pet­i­tion team has provided a com­pre­hens­ive re­view of the most re­cent de­vel­op­ments in the field of ab­use of dom­in­ance in Aus­tria as part of the 10th edi­tion of the Dom­in­ance and Mono­pol­ies Re­view. In this chapter Bernt Els­ner, Part­ner and Head of Aus­tria and CEE Com­pet­i­tion PAG,  Di­eter Zand­ler, Co-Head of the Aus­tri­an com­pet­i­tion prac­tice group, and Vanessa Hor­aceck, As­so­ci­ate in the Aus­tri­an com­pet­i­tion prac­tice group cov­er the dis­tinct char­ac­ter­ist­ics of Aus­tri­an an­ti­trust law and provide an over­view of the most prom­in­ent cases in the past years. Read­ers can fa­mil­i­ar­ise them­selves with the re­cent prac­tice of the Aus­tri­an FCA and courts in the field of ab­use of a dom­in­ant mar­ket po­s­i­tion, as for ex­ample in the OGH’s rul­ing against Peugeot Aus­tria GmbH or the case against Mer­ck Sharp & Dohme GmbH, who al­legedly ab­used a dom­in­ant po­s­i­tion through their pred­at­ory pri­cing of a drug used to treat brain tu­mours. Also worth read­ing is an over­view of the most im­port­ant fi­nal de­cisions in ab­use pro­ceed­ings be­fore the Aus­tri­an car­tel courts in re­cent years, most of which were ini­ti­ated by private plaintiffs.The en­tire art­icle is avail­able here. Our CMS ex­perts will be happy to an­swer any ques­tions on this top­ic.
22/09/2022
8th CMS Pub­lic Pro­cure­ment For­um
We are de­lighted to an­nounce that the 8th CMS Pub­lic Pro­cure­ment For­um will take place in Oslo on Thursday, 22 Septem­ber 2022 from 12:45 - 17:30 p.m. CET provid­ing an up­date on European pub­lic pro­cure­ment law.The pro­gramme will cov­er policy de­vel­op­ments in the EU and re­cent and im­port­ant de­cisions from the ECJ with high rel­ev­ance in prac­tice. In the second part of the event, we in­vite you to a com­par­at­ive view shar­ing ex­per­i­ences from sev­er­al jur­is­dic­tions on two top­ics with prac­tic­al rel­ev­ance:decim­al­possible dam­ages claims an­dtime lim­its and cut off for claims.The con­fer­ence will be held in Eng­lish and free of charge. There will be the pos­sib­il­ity to par­ti­cip­ate re­motely for any­one in­ter­ested in these top­ics, but un­able to at­tend in per­son. 
31/03/2022
CMS ad­vises Siemens Aus­tria on sale of Aus­tri­an fa­cil­ity man­age­ment busi­ness
Aple­ona ac­quires Siemens Ge­bäu­de­m­an­age­ment und -Ser­vices (SGS). CMS Vi­enna provides com­pre­hens­ive leg­al sup­port to Siemens Aus­tria.   Siemens Aus­tria has agreed to sell Siemens Ge­bäu­de­m­an­age­ment & -Ser­vices G.m.b.H. (SGS) to Aple­ona. The clos­ing of the trans­ac­tion is ex­pec­ted in the third quarter of the fin­an­cial year and is sub­ject to cus­tom­ary an­ti­trust ap­provals. Both com­pan­ies have main­tained a good and close re­la­tion­ship for years. SGS will be fur­ther strengthened by join­ing forces with Aple­ona, res­ult­ing in an ex­pan­ded and im­proved range of ser­vices.   Siemens Aus­tria is be­ing leg­ally ad­vised and sup­por­ted by the Vi­en­nese law firm CMS Reich-Rohr­wig Hainz un­der the lead­er­ship of Al­ex­an­der Rakosi, part­ner in the Cor­por­ate/M&A de­part­ment. The core CMS team fur­ther con­sists of M&A ex­perts Flori­an May­er, Mar­ie-Christine Lidl, Anna Hiegel­sper­ger and Mat­thi­as Emich. Sibylle Novak and Al­ex­an­der Hier­mann deal with tax law is­sues, An­drea Potz, and Jens Winter as­sist on la­bour law top­ics and Bernt Els­ner and Mar­lene Wim­mer-Nistel­ber­ger ad­vise on com­pet­i­tion law. Ad­di­tion­al sup­port dur­ing the course of the trans­ac­tion came from Daniela Ka­rol­lus-Bru­ner, Robert Keisler, Di­eter Zand­ler and Clem­ens Gross­may­er.   Al­ex­an­der Rakosi is pleased with the suc­cess­ful deal sign­ing: “We are proud to be able to sup­port Siemens on this pro­ject with a cross-de­part­ment­al team and con­trib­ute to fur­ther en­trench­ing Siemens as a fo­cused tech­no­logy com­pany in Aus­tria.”   Siemens Ge­bäu­de­m­an­age­ment & -Ser­vices ¬G.m.b.H., based in Vi­enna, is a suc­cess­ful man­u­fac­turer-in­de­pend­ent full-ser­vice pro­vider in the tech­nic­al build­ing¬ man­age­ment¬ sec­tor with around 260 em­ploy­ees. Its cus­tom­ers in­clude in­sti­tu­tions from the health care, cul­ture and edu­ca­tion, trade and lo­gist­ics sec­tors, as well as renowned com­mer­cial en­ter­prises. In the last busi­ness year, it achieved a turnover of around 75 mil­lion euros.
10/03/2022
The Private Com­pet­i­tion En­force­ment Re­view I Aus­tria Chapter
Fif­teenth Edi­tion
09/12/2021
CMS Pub­lic Pro­cure­ment For­um
Pub­lic pro­cure­ment on the move to eco­lo­gic­al trans­ition We are de­lighted to an­nounce that the 7th CMS Pub­lic Pro­cure­ment For­um will take place in Par­is on Thursday, 9 Decem­ber 2021 from 5:00 p.m. to...
23/07/2021
The Dom­in­ance and Mono­pol­ies Re­view: Aus­tria
An Aus­tri­an com­pet­i­tion team of ex­perts Di­eter Zand­ler, Co-Head of the Aus­tri­an com­pet­i­tion prac­tice group, and Vanessa Hor­aceck, As­so­ci­ate in the Aus­tri­an com­pet­i­tion prac­tice group, to­geth­er with Bernt Els­ner, Part­ner and Head of Aus­tria and CEE Com­pet­i­tion PAG, have provided a com­pre­hens­ive re­view of the most re­cent de­vel­op­ments in the field of ab­use of dom­in­ance in Aus­tria as part of the 9th edi­tion of the Dom­in­ance & Mono­pol­ies Re­view.  In their chapter for Aus­tria, they re­flect not only on ap­plic­able Aus­tri­an le­gis­la­tion, but also out­line the most prom­in­ent cases in the past years, thereby provid­ing guid­ance in the re­cent prac­tice of the Aus­tri­an FCA and courts in the field of ab­use of a dom­in­ant mar­ket po­s­i­tion. You may also find an in­ter­est­ing over­view of the most im­port­ant fine de­cisions in the ab­use of dom­in­ance cases be­fore the Aus­tri­an car­tel courts in re­cent years.  The en­tire art­icle is avail­able on the link be­low. If you have any ques­tions for our ex­perts, their con­tact is provided at the bot­tom of the page.
09/07/2021
CMS launches glob­al PP Rem­ed­ies Tool­box
CMS launches in­ter­act­ive on­line tool for pub­lic pro­cure­ment rem­ed­ies CMS launches its glob­al PP Rem­ed­ies Tool­box, an in­ter­act­ive on­line tool cov­er­ing around 16 coun­tries on 3 con­tin­ents.The tool cov­ers...
14/04/2021
The Private Com­pet­i­tion en­force­ment Re­view I Four­teenth Edi­tion
Private an­ti­trust lit­ig­a­tion in Aus­tria has sub­stan­tially in­creased in re­cent years. To a large ex­tent, this growth can be at­trib­uted to an in­crease of car­tel court de­cisions im­pos­ing fines against car­tel mem­bers based on in­tens­i­fied en­force­ment activ­ity of the Aus­tri­an Fed­er­al Com­pet­i­tion Au­thor­ity (FCA) and the Aus­tri­an Fed­er­al Car­tel Pro­sec­utor (with the de­cision in the El­ev­at­ors and Es­cal­at­ors car­tel case be­ing the show-starter). On the basis of these de­cisions find­ing vi­ol­a­tions of an­ti­trust law, the Aus­tri­an Su­preme Court (OGH) in sev­er­al cases has af­firmed the pos­sib­il­ity of claims for dam­ages for dir­ectly dam­aged parties as well as for in­dir­ectly dam­aged parties, in­clud­ing cases where dam­ages were al­legedly caused by car­tel out­siders (um­brella pri­cing).The com­plete "The Private Com­pet­i­tion en­force­ment Re­view" is avail­able via down­load.
26/03/2021
Bid rig­ging in pro­cure­ment pro­ced­ures
The European Com­mis­sion (“Com­mis­sion”) has pub­lished a No­tice about deal­ing with agree­ments aimed at dis­tort­ing com­pet­i­tion. The Com­mi­s­ion­s' "No­tice on tools to fight col­lu­sion in pub­lic pro­cure­ment...