Competition and Antitrust

A Blessing in Disguise? Section 17 of the Austrian Cartel Act

Author: Dieter Hauck

Section 17 of the Cartel Act seems clear in that a merger requiring notification may be implemented only after clearance, which will be achieved if:

  • the Federal Cartel Authority and the federal cartel prosecutor (herein, the 'official parties') waive their right to move for a full investigation in the court;
  • the official parties fail to file such a motion within the deadline provided by law; or
  • the court rules in favour of implementation.

However, to date, the law contains no definition of 'implementation'. There has been much debate in doctrine regarding whether implementation should be defined broadly as the mere possibility of influencing the target's behaviour, or more narrowly as the actual exercise of such influence. The Cartel Court's case law has followed the narrower definition. However, a recent Supreme Court decision has clarified the matter and reached a different conclusion.(1)

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