Private antitrust litigation in Austria has substantially increased in recent years. To a large extent, such 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 being the show-starter).
Claims for damages by injured parties - landmark decisions of the Court of Justice of the European Union
Based on such 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). In addition, Austrian private antitrust litigation has been the nucleus for landmark decisions of the Court of Justice of the European Union (CJEU), such as the Kone case regarding antitrust damages claims based on umbrella pricing and the Donau Chemie case concerning access to the file by possible private damages claimants. Following these judgments, the Austrian Supreme Court in May 2018 asked the CJEU whether lenders that provided publicly subsidised funding to customers of the Escalator cartel (such as housing and building cooperatives) may claim damages (from increased loan and funding requirements) from the cartel members.
Antitrust practice - delays in major proceedings
Therefore, although private antitrust litigation today plays a pivotal role in Austrian antitrust practice, and Austrian courts are also actively shaping the law on a European level (by referring such important questions to the CJEU), final decisions in major proceedings often experience substantial delay owing to numerous upfront disputes over procedural matters.
Detailed information on this topic can be found in the publication Private Competition Enforcement Review. Twelfth Edition for download.