Antitrust and competition law

Antitrust Law covers not only anti-competitive agreements between companies, but also the behaviour of companies with a strong market presence, the merger of companies or even the acquisition of individual shares. Our services range from the preparation of distribution agreements and articles and memoranda of association of companies, determination of market shares for antitrust purposes, to legal representation before the antitrust authorities and assistance with compliance activities as a preliminary measure.

Competition Law

Competition Law serves to prevent excessive or unfair competition and is regulated in the Act against Unfair Competition (UWG), which offers protection against unfair, misleading and aggressive business practices. An incomplete imprint may present a breach of competition just like comparative advertisement or the denigration of another company.

Our experts provide advice not only in connection with the organisation and announcement games and competitions, which are subject to strict regulations, but will also provide information in regard to antitrust law and in the case of a breach of the ordre public. We will draft out-of-court warning letters for you or pursue your right to an injunction and damages against competitors and other businesses by legal recourse to the civil courts ("private enforcement"). We will advise you in matters relating to restraints of competition, imitation of the industrial work results and achievements of another person, in the case of an economic boycott, employee poaching or in a case of sales restraints, as well as in the event of misleading statements, bluff packaging, abuse of another person's marks or a breach of the provisions on add-ons.

Horizontal Antitrust Law

Horizontal Antitrust Law applies to all agreements between competitors concerning restrictive agreements. Such agreements may contain agreements on pricing, territories and customers. Following the amendment of the antitrust legislation in 2012, Antitrust Law now applies to each entrepreneur, irrespective of market shares.

Vertical Antitrust Law

Vertical Antitrust Law governs restrictive agreements between entrepreneurs who are at different economic levels: for example, between a supplier and a distributor, a manufacturer and a processors, franchisors and franchisees. As soon as an agreement contains a purchase commitment, customer protection, territorial protection, non-compete clause or similar stipulations, the agreement must be examined to establish if the clauses are, by way of exception, exempt from the antitrust prohibition.

We provide assistance for the preparation of distribution agreements having regard to antitrust requirements. Likewise, we review existing distribution agreements with a view to their lawfulness.

Marketing cartels

Since distribution agreements mostly include restrictive provisions, e.g. clauses protecting territories or customers or purchase commitments, such agreements are subject to review from an antitrust perspective. Substantial fines and claims for damages by affected parties may ensue. We provide assistance in the preparation of distribution agreements, review your existing agreements, calculate your market shares, represent you in proceedings before cartel authorities and assist you in antitrust compliance programmes as a preliminary measure.

Abuse control

Abuse control is a specific aspect of Antitrust Law which relates to the abuse of a dominant position and is committed, unlike in the case of a cartel, by a single company. Companies with a market share of 30 % are already deemed to be dominant. Such companies are obliged to refrain from certain types of behaviour defined as abusive in terms of the Cartel Act, but which are in principle admissible for non-dominant companies. This includes in particular certain purchase commitments in distribution agreements, discounts, certain forms of tying practices, refusals to supply and price discriminations.

We provide assistance in determining your market share, reviewing and preparing your distribution agreements having regard to a dominant position and represent you in in court proceedings in the antitrust courts e.g. in the case of an order to end an infringement or an application to establish past infringements.

Merger control

Merger control serves to review business concentrations or the establishment of joint ventures that result in a company establishing or reinforcing its dominant position.

Depending on the level of company holdings involved, merger control must always be taken into account (in addition to the implementation of the concentration under Company Law), as otherwise the merger may be prohibited.

Depending on the turnover, mergers must be notified to the Austrian Competition Authority (Bundeswettbewerbsbehörde). This obligation relates to universal succession (merger and transformation), singular succession ("asset deal"), but also to significant components in the sense of operating plants and trademarks, as well as to agreements for the lease a business or management agreements.

We provide assistance for determining the turnover threshold for notification, the actual notification to the Austrian Competition Authority as well as for all company-law related matters.

Contact us at here – we will be glad to counsel you.