I OVERVIEW OF RECENT PRIVATE ANTITRUST LITIGATION ACTIVITY

Private antitrust litigation in Austria has substantially increased in recent years.2 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 cartel3 being the show-starter). 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 parties4 as well as for indirectly damaged parties,5 including cases where damages were allegedly caused by cartel outsiders (umbrella pricing).6

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 case7 regarding antitrust damages claims based on umbrella pricing as well as the Donau Chemie case8 concerning access to the file by possible private damages claimants. Although private antitrust litigation nowadays plays a pivotal role in Austrian antitrust practice and Austrian courts are actively shaping the law even 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.

II GENERAL INTRODUCTION TO THE LEGISLATIVE FRAMEWORK FOR PRIVATE ANTITRUST ENFORCEMENT

Austria is currently implementing the EU Damages Directive (the Directive).9 Although the deadline for its implementation was 27 December 2016, at the time of writing only the draft of the Federal Ministry of Justice (Ministerialentwurf Kartellgesetz-Novelle 2016; the Draft) has been prepared, which is closely linked to the provisions of the Directive, but most probably will still be subject to amendments.

In Austria, currently Section 37a of the Cartel Act (KartG) is the cornerstone of private antitrust damages claims (PADCs).10 According to the Draft, the new regime for PADCs will be regulated in the new Section 37a to 37m KartG. The competent courts for PADCs are the ordinary civil courts.

Pursuant to Section 37a(1) KartG first sentence, claimants may seek damages from parties culpably violating the substantive provisions of Austrian or European antitrust law. Pursuant to the Draft, there is a (rebuttable) presumption that a cartel between competitors causes damage.

Section 37a(3) KartG (Draft: 37i(2) KartG) stipulates that decisions of the cartel court, the European Commission or the national competition authorities (NCAs) of other EU Member States establishing an infringement have a binding effect for the Austrian civil courts as regards illegality and culpability. Therefore, in a follow-on scenario claimants ‘only’ have to establish the damages incurred and a causal link between the infringement and such damages. The current Section 37a(4) KartG stipulates that the statute of limitations for PADCs is suspended for the period during which infringement proceedings are pending before the cartel court, the European Commission or before the NCAs of other EU Member States. The Draft, in Section 37h KartG, contains detailed provisions on the suspension during pending proceedings. Currently, the suspension ends six months after the decision has become legally binding or the proceedings have ended otherwise. Pursuant to the Draft, the suspension will end one year after the decision has become legally binding or the proceedings have ended otherwise. According to Section 37a(2) KartG, PADC proceedings can be suspended for the duration of parallel proceedings with the cartel court, the European Commission or an NCA of another EU Member State. The Draft, in Section 37g(4) KartG, also allows courts to suspend the proceedings for a maximum period of two years when it is likely that the parties will agree on a settlement. In the case of unsuccessful settlement negotiations, a claim has to be filed within a reasonable period of time (Draft, Section 37h(2) last sentence).

The current Section 37a KartG was introduced in the Cartel and Competition Amendment Act 2012 and entered into force on 1 March 2013. The provision was mainly inspired by Section 33 of the German Act against Restraints of Competition.11 For all PADCs resulting from violations from Austrian and European antitrust law that have occurred until 28 February 2013, the general tort law rules apply.12 While it is established case law that antitrust laws are so-called protective provisions under general tort law that may form the basis of PADCs if the damages have been caused culpably,13 the reliefs offered by Section 37a KartG are not applicable to PADCs based on antitrust violations that occurred prior to 1 March 2013. According to the Draft, the new PADCs regime will apply to damages arising after 26 December 2016; for all damages arising before this date, the old regime will have to be applied.

Currently the general limitation period for PADCs is three years, commencing from the knowledge of the circumstances giving rise to the claim and the identity of the injuring party. This limitation period will be extended to five years. Furthermore, a new (absolute) limitation period of 10 years will be introduced, which neither depends on the knowledge of the circumstances giving rise to the claim nor to the identity of the injuring party.

III EXTRATERRITORIALITY

The application of the specific rules on PADCs in the KartG requires a domestic effect in Austria (‘effects doctrine’).14 If no such domestic effect can be established, a claimant may only base its PADC on general tort law rules.

As regards jurisdiction, a PADC can, inter alia, be brought before Austrian courts:

  • a against a defendant domiciled outside Austria if the harmful event caused by the cartel occurred or is expected to occur in Austria;15
  • b against a defendant that is domiciled in Austria (with the potential to include the other cartel members as additional defendants in the same lawsuit16); and
  • c against defendants that are not domiciled in one of the Member States of the EEA if they hold assets in Austria.17

IV STANDING

Based on the decisions of the CJEU in Courage v. Crehan18 and Manfredi,19 anyone who has suffered damages from an infringement of Article 101 TFEU is entitled to recoup his or her losses from the cartelists. This case law also had a significant effect on PADCs solely based on an infringement of Austrian competition law. So far, only in cases of umbrella claims has it been held that under Austrian law (if EU law is not applicable) a claimant would not have standing against the cartelists due to lack of an adequate causal link between the cartelists’ infringement and the losses alleged by the claimant.20 Following the CJEU’s decision in the Kone case,21 however, it remains to be seen whether the OGH will uphold this approach in ‘domestic’ cases that are not also based on an infringement of EU competition law.

V THE PROCESS OF DISCOVERY

Austrian law currently does not allow for (pretrial) discovery as found in Anglo-American legal systems. Rather, each party has to substantiate the facts favourable to its legal position by putting forward evidence (e.g., witnesses, documents, court-appointed experts).

In order to obtain such evidence, a potential claimant contemplating a PADC may request access to files of the cartel court pursuant to the provisions set out in Section 219(2) of the Code of Civil Procedure (ZPO).22 Based on this provision a third party may be granted access to the file if it can credibly show a legitimate interest (which typically can be established by a possible PADC). If such legitimate interest can be shown, the cartel court has to decide whether to grant access to the file by balancing the conflicting interests of the party seeking access and the interests of the parties of the cartel court proceeding, in particular business secrets. Such balancing of interests has to be made for every single document for which access is requested.23

Based on the CJEU’s decision in the Donau Chemie case (which was based on a request to the Austrian cartel court for access to the file concerning an infringement proceeding relating to printing chemicals), Section 39(2) KartG, which made such access to the file conditional upon the approval of all the parties to the cartel court proceedings (and thereby making access to the file virtually impossible for potential claimants) is no longer applicable if the potential claim for which access to the file is requested is based on an infringement of Article 101 TFEU. In a more recent ruling, the OGH declared that Section 39(2) KartG also will no longer be applicable in cases where the potential PADC for which access to the file is requested is based on an infringement of national antitrust law without any EU law implications.24 According to this judgment, the courts should give parties that deny access to the file the opportunity to present their reasons for such denial in order to decide on the balancing of interests.25

The FCA – which often will be in possession of additional evidence (as not all evidence will necessarily be submitted to the cartel court proceedings by the FCA) – currently does not allow (third) parties access to its file.26

Furthermore, in PADC proceedings before civil courts, parties can claim that the opposing party is in possession of documents that are of significant importance for substantiating its claims and parties can request the court to order the opposing party to disclose such documents (Section 303 ZPO). Disclosure may not be denied only when (1) the opposing party has itself relied on the document, (2) the opposing party is obliged to disclose the document due to applicable law, or (3) the document is a joint document of the parties.27 Owing to these limitations, the existing disclosure obligation currently does not play an important role in Austrian procedural practice.

Pursuant to the Draft (Section 37j(2) KartG) a party may submit a discovery request to the court together with, or after, having lodged an action for damages. The court then may order the disclosure of evidence by third parties or the opposing party. The court will balance the conflicting interests with respect to confidential information and can order measures to secure the confidentiality of specific information.

The party being ordered to disclose evidence can request that certain pieces of evidence are only disclosed to the court (obligation of secrecy (e.g., lawyer) or any other right to refuse to give evidence (Section 157(1) No. 2 to 5 Austrian Criminal Procedure Act (StPO)). The court will then decide, without consulting with the parties, whether to require the disclosure of the evidence. A court decision ordering the disclosure may be appealed immediately, but a decision denying the disclosure may only be appealed when linked to the remedy against the final judgment.

A party to the proceedings may also apply for the disclosure of documents entailed in the files of competition authorities (European Commission, NCA). However, certain documents, namely (1) information prepared for the proceedings before the competition authority, (2) information prepared during the proceedings by the authority and submitted to the parties, and (3) settlement submissions that were withdrawn, may only be disclosed once the competition authority has completed its proceedings (Draft Section 37k(3) KartG). Leniency statements as well as settlement submissions will not be subject to disclosure (Draft Section 37k(4) KartG). It remains to be seen whether this provision (implementing Article 6(6) of the Directive) will be subject to legal challenge as it may conflict with the CJEU’s decision in the Donau Chemie case, which determined that a general exclusion of inspection of records without any balancing of interest is contrary to the principle of effectiveness. According to the principle of effectiveness, Member States shall ensure that all national rules and procedures relating to the exercise of claims of damages from infringements of Article 101 or 102 TFEU are designed and applied in such a way that they do not make it in practice impossible or excessively difficult to exercise the Union right to full compensation for harm caused by an infringement of Article 101 or 102 TFEU.

VI USE OF EXPERTS

According to Section 351(1) ZPO, courts can appoint experts to collect evidence. Such court-appointed experts can have an important role in private antitrust damage proceedings in particular as regards establishing whether an alleged loss has occurred and as regards the calculation of the quantum of damages (see Section VIII, infra, for more detail). Although currently Section 37a(1) KartG28 also gives courts the capacity to estimate the quantum of damages (see Section VIII) themselves, courts often are not willing to make such estimates but rather prefer to appoint court experts, such as economists, to calculate the quantum of damages suffered.

To establish loss, and to calculate the quantum of damages, as well as the causal link between an infringement and such damages, parties can also appoint private experts and use their findings as evidence in the proceeding. In addition, parties may also try to call their private expert as an expert witness to the proceeding. Note, however, that private experts appointed by the parties do not substitute court-appointed experts and that courts may disregard the findings of a party-appointed expert simply by relying on the findings and opinion of a court-appointed expert. Private party experts’ findings reports also do not have the full evidential value compared to reports of court-appointed experts (Section 292 ZPO).

VII CLASS ACTIONS

Austrian law does not provide for class actions as found in Anglo-American legal systems (neither on an opt-in nor an opt-out basis). However, the number of mass proceedings has increased recently (although still comprising a much lower proportion when compared with other countries such as the US).29 Recently, Austrian-style ‘class actions’ have been brought before courts mainly by the association for consumer protection (VKI) through individual consumers assigning their claims to the VKI, which then tries to combine these claims in a single court proceeding.30 However, as the ZPO does not contain any specific provisions for class actions, courts have differed in their treatment, by either treating them as separate single proceedings, by joinder of claimants, or by having one ‘test proceeding’ (while staying the other proceedings), which then serves similar to a ‘precedent’ for the other claims.31

Despite the growing number of such Austrian-style ‘class actions’, courts remain reluctant to accept the pooling of claimant actions for damages and instead try them in a single court proceeding; Austrian civil procedural rules are rather based on an individual examination of each claim brought before the court.

To our knowledge, there is no published case law in Austria that examines the potential of an Austrian-style class action in PADC proceedings. However, the models that have been used for combining individual consumer claims could theoretically also serve as a process for pooling PADCs, and such a model appears to have been successfully applied in 2007 by the Austrian Federal Chamber of Employees in a PADC against a driving school in Graz that had participated in a cartel with other local driving schools.32

VIII CALCULATING DAMAGES

Under Austrian law, antitrust damages are limited to the actual loss suffered plus statutory default interest33 calculated from the date when the loss occurred. Thus, Austrian law does not allow a claim for punitive or treble damages and also does not take into account possible fines imposed by competition authorities. If a PADC is based on an infringement of Article 101 TFEU, such actual losses also include lost profits based on the CJEU’s Manfredi judgment. For the current regime PADCs that are only based on an infringement of national antitrust laws, lost profits may be awarded in cases where the commitment of the infringement was grossly negligent or intentional34 or if the claim is based on a contractual relationship between enterprises.35 However the current proposal for the new PADC regime determines that the actual loss also encompasses loss of profit, irrespective of the culpability of the infringement or whether the claim is based on a contractual relationship between enterprises (Section 37d(1) KartG).

According to Austrian case law, antitrust damages are calculated by comparing the actual financial situation of the injured party after the infringement with the counterfactual hypothetical scenario without the damaging infringement.36 Often, injured parties have difficulty establishing the counterfactual hypothetical scenario that establishes proof of their damages.37

Austrian law allows the courts to estimate the quantum of the damages if the liability has already been established and the injured party was able to establish that it has suffered damages due to an antitrust infringement (i.e., the injured party has to prove the ‘first euro’ of its damages;38 for cartels between competitors, the Draft contains a presumption that it caused damages, thus allowing an estimate already if such presumption cannot be rebutted).39

While Austrian civil procedural rules regarding the reimbursement of procedural costs generally are based on the ‘loser pays principle’, attorneys’ fees are only reimbursed on the basis of the (fixed) statutory fees for attorneys which are largely dependent on the amount in dispute and not the actual amount of attorneys’ fees incurred by a party (e.g., on the basis of hourly rates). As a rule of thumb, the statutory attorneys’ fees are usually significantly lower than the actual attorney’s fees (if an attorney does not charge his or her client on the basis of statutory fees) for smaller matters (as regards the amount in dispute) whereas the statutory attorneys’ fees for larger disputes (typically above a million euro amount) often exceed the actual attorneys’ fees incurred based on applicable market rates. The award of costs also includes court fees, including a party’s expenses for court-appointed experts.

IX PASS-ON DEFENCES

Currently Section 37a(1) second sentence KartG clarifies that the passing on of excess fees in products or services as such is not sufficient grounds to preclude PADC of the initial buyer based on increased prices. An indirectly damaged party is also allowed to claim damages from the members of a cartel when the damages are ‘automatically’ passed on from the contractual counterparty of the cartelists to the claimant by means of a contractual obligation.40 In one decision, the OGH adopted the position expressed by the German Federal Court in 201141 that the passing-on defence is to be recognised under the legal concept of ‘benefit sharing’ to reduce the damages suffered by the direct purchaser. However, as the decision involved a situation where the damage was ‘automatically’ passed on by means of a contractual obligation, it was not necessary for the OGH to deal generally with the question of an admissibility of the passing-on defence in cases where the direct purchaser was able to pass on some or all of its cartel losses to the next market level by way of a price increase.42 In another decision, the OGH held a claim from an indirect purchaser of escalators admissible based on the contention that the loss was economically passed on to the indirect purchaser by the direct purchaser.43 Therefore, if a party can establish that it has suffered damages that were caused by an antitrust infringement, there is generally no limitation for claims from indirect purchasers. The Draft (Section 37f KartG) provides that generally the defendant has the burden of proof for passing-on and a (rebuttable) presumption of passing-on of the damage to the indirect purchaser exists (in case of a PADC by an indirect purchaser) if it has been established that the cartelist has conducted an antitrust infringement causing a price increase for the direct purchaser and the products or services sold to the indirect purchaser were subject to this antitrust infringement. Even if a passing on can be established, a claimant still can claim lost profits from the cartelists.

In order to prevent overcompensation, the Draft also allows the defendant in a proceeding involving passing on to summon the respective third party (e.g., direct or indirect purchaser) to join the proceedings. In such case, the findings concerning passing on will be legally binding for the third party irrespective of whether it joins the proceedings or not (Draft Section 37f(4) KartG).

X FOLLOW-ON LITIGATION

Owing to the binding effect of final decisions of the cartel court establishing an antitrust law infringement (see Section II, supra) in Austria, PADCs are in almost all cases pursued in follow-on actions. However, other areas of private antitrust litigation (e.g., contractual disputes or disputes involving access to essential facilities or distribution systems) often are commenced on stand-alone claims.

XI PRIVILEGES

The professional secrecy obligation of attorneys (obligation) plays an important role in Austria when it comes to (defence) attorneys being used to provide evidence. According to Section 9(2) of the Austrian Code of Lawyers (RAO), attorneys admitted to the Austrian Bar are obliged to keep confidential information which (1) is entrusted to them by the client or (2) is obtained in their professional capacity if the confidential treatment of such information is in the interest of the client. The obligation applies before courts as well as in administrative proceedings. Moreover Section 9(3) RAO stipulates that the obligation may not be circumvented by actions of the courts or administrative authorities (e.g., by questioning assistants of the attorney or ordering the disclosure or seizure of the attorney’s documents, image-, sound- or data carriers). The obligation does not apply with respect to information or documents that are not attorney–client communication, but are rather just deposited with the attorney.

In PADC proceedings, an attorney may refuse to provide documents if the disclosure violates such confidentiality obligation (Section 305 number 4 ZPO). Additionally, an attorney may also refuse to give evidence as a witness if it violates confidentiality (Section 321(1) number 3 ZPO). However, clients have the right to release their attorneys from the obligation.

In FCA investigations, in particular as regards the seizure of documents during a dawn raid, attorney–client communications previously were not privileged if they are not in the hands of the attorney.44 This has been heavily criticised in legal writing as it deviates from the standard applicable in investigations of the European Commission and circumvents the Obligation.45 Based on a recent change to Section 157(2) StPO, documents and information prepared for the legal advice or defence may not be seized even if they are in the domain of a (co-)defendant in criminal proceedings. It remains to be seen whether this general criminal law provision will also be held to be applicable in case of dawn raids by the FCA.

XII SETTLEMENT PROCEDURES

Austrian law permits parties to settle private antitrust damages litigation both prior to starting legal proceedings as well as during an ongoing court proceeding. As one of the main advantages of a settlement (often) is its lack of publicity, there is limited public information available on how frequently settlements concerning PADCs occur (although there are a number of prominent cases where it is publicly known that they were settled out of court). As out-of-court settlements may be subject to stamp duty in Austria, it is important to structure them in a tax-efficient manner while at the same time providing the parties with the necessary legal protection.

In addition to private cartel settlements, settlements of governmental antitrust proceedings46 currently play a very important role in Austria, which makes it more difficult for private claimants to pursue PADCs against cartelists as only limited information about the details of an infringement becomes public in the fine decisions that are published by the cartel court on the basis of Section 37(1) KartG.47

XIII ARBITRATION

As PADCs generally fall under the jurisdiction of the civil courts, they may alternatively be adjudicated in arbitration proceedings,48 provided that the parties mutually agree to such proceedings (Section 582(1) ZPO). An arbitration agreement may be concluded for both contractual and non-contractual disputes (Section 581(1) ZPO). Depending on the content of the arbitration agreement, the arbitration proceedings may be subject to national civil procedural rules, ad hoc rules or administered under commonly used arbitration rules such as those of the ICC or the Vienna International Arbitral Centre. As Austrian law requires an arbitration agreement in writing, arbitration is rarely used for the typical follow-on PADC, but is rather confined to private antitrust disputes where the contract between the parties of the proceedings already contains a (sufficiently broad) arbitration clause.

In cases where an effective arbitration agreement exists, Austrian courts have to reject a claim if the defendant does not engage in the court proceedings without contesting the court’s jurisdiction (Section 584(1) ZPO). If a dispute that already is subject to arbitration proceedings is subsequently initiated before civil courts such claim in general will also be rejected (Section 584(3) ZPO).

XIV INDEMNIFICATION AND CONTRIBUTION

Under Austrian law, cartel members are jointly and severally liable co-debtors for the losses of injured parties49 if the infringement was committed intentionally or if the individual portion of the damages caused cannot be determined. In such case, an injured party may claim from one cartel member the loss caused to it by the entire cartel; such joint and several liability is based on general tort law (Section 1302 ABGB).50 For such joint and several liability, an individual cartel member’s intent must not necessarily cover the losses caused by the entire cartel.51 According to the Draft (Section 37e(1)), cartel members are jointly and severally liable co-debtors for the losses culpably caused to injured parties (therefore, not requiring an intentional infringement and irrespective of whether the individual portion of the damages can be determined).

Where a cartel member is held liable as a co-debtor, it may seek redress for the damage payments from the other co-debtors.52 Currently, Austrian law does not provide for any specific rules on how to determine the respective contribution of each cartel member for private antitrust damages and we are not aware of any specific case law in Austria on this issue.

The Draft (Section 37e(2) and (3)) contains specific provisions providing special protection from joint and several liability for immunity recipients (and redress for damage payments from immunity recipients) and SMEs as well as for redress in case of settlements (Section 37g).

XV FUTURE DEVELOPMENTS AND OUTLOOK

Although the specific Austrian provisions on the enforcement of PADCs only came into force approximately three years ago, the implementation of the Directive will again lead to a substantial transformation of the legal framework for cartel damages claims in Austria.53 Although the necessary amendments to the Austrian PADC regime to implement the Directive have not been passed into law at the time of writing (with the Draft being subject to possible amendments), it is widely expected that the final version of the Kartellgesetz-Novelle 2016 will further stimulate private antitrust damages litigation in Austria.

1 Bernt Elsner is a partner, Dieter Zandler is an attorney and Molly Kos is an associate at CMS Reich-Rohrwig Hainz Rechtsanwälte GmbH, Vienna. The authors would like to thank Arno Scharf (also of CMS Reich-Rohrwig Hainz Rechtsanwälte GmbH) for his assistance with preparation of this chapter.

2 Apart from private antitrust damages claims, private antitrust litigation in 2015 in Austria also led to Supreme Court decisions in various fields involving cases where private claimants were seeking (1) access to newspaper takeaway in Vienna’s subway stations (OGH 11 June 2015, 16 Ok 8/14h), (2) admission to selective distribution networks in the automotive services industry (OGH 8 October 2015, 16 Ok 1/15f), (3) to challenge non-compete and radius clauses in lease agreements for tenants in shopping centres (OGH 8 October 2015, 16 Ok 6/15s), or (4) to contest predatory pricing and cross-subsidising in the waste collection sector (OGH 8 October 2015, 16 Ok 9/15g).

3 OGH 8 October 2008, 16 Ok 5/08.

4 OGH 26 May 2014, 8 Ob 81/13i.

5 OGH 2 August 2012, 4 Ob 46/12m.

6 OGH 29 October 2014, 7 Ob 121/14s.

7 Judgment Kone and Others v. ÖBB Infrastruktur AG, C-557/12, ECLI:EU:C:2014:1317.

8 Judgment Bundeswettbewerbsbehörde v. Donau Chemie and Others, C-536/11, ECLI:EU:C:2013:366.

9 Directive 2014/104/EU on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union, OJ 2014 L 349 p. 1.

10 Other provisions that can be used as a basis for a claim for private antitrust law enforcement not (directly) aimed at seeking damages – such as Section 36(4) Nr 4 KartG (actions for seeking a prohibition decision pursuant to Section 26 or establishing infringements in the past pursuant to Section 28 KartG) – as well as cases where the nullity of an agreement violating competition law is sought are not covered in this chapter.

11 Gruber, Österreichisches Kartellrecht, 2nd edition Vienna 2013, Section 37a KartG 2005, p. 498.

12 Section 86(4) KartG last sentence.

13 OGH 14 February 2012, 5 Ob 39/11p; OGH 4 Ob 46/12m.

14 Section 24(2) KartG; cf OGH 27 February 2006, 16 Ok 49/05; OGH 23 June 1997, 16 Ok 12/97.

15 Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), OJ 2012, L 351/1, p. 1, Article 7(2); see also Judgment Cartel Damage Claims (CDC) Hydrogen Peroxide SA v. Akzo Nobel and others, C-352/13, ECLI:EU:C:2015:335.

16 Ibid. Article 8(1): ‘[…] provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.’

17 Section 99 Law on Court Jurisdiction (JN).

18 Judgment Courage Ltd v. Bernard Crehan and Bernard Crehan v. Courage Ltd and Others, C-453/99, ECLI:EU:C:2001:465.

19 Judgment Vincenzo Manfredi v. Lloyd Adriatico Assicurazioni SpA (C-295/04), Antonio Cannito v. Fondiaria Sai SpA (C-296/04) and Nicolò Tricarico (C-297/04) and Pasqualina Murgolo (C-298/04) v. Assitalia SpA, C-295/04, ECLI:EU:C:2006:461.

20 OGH 17 October 2012, 7 Ob 48/12b (ruling).

21 The OGH in this decision asked the trial court to establish the necessary facts with regard to umbrella pricing: OGH 7 Ob 121/14s.

22 Gitschthaler in Gitschthaler/Höllwerth, AußStrG Section 22 paragraph 28 et seq.

23 Ibid. paragraphs 43, 47, 48.

24 OGH 28 November 2014, 16 Ok 10/14b and 16 Ok 9/14f; Ablasser-Neuhuber, Zur Einsicht in Akten des Kartellverfahrens, ÖBl 2015/37; Zandler, Akteneinsicht in Kartellgerichtsakten, 9 February 2015: http://blog.cms-rrh.com/post/2015/02/09/akteneinsicht-in-kartellgerichtsakten/ (last accessed on 1 December 2016).

25 See Gitschthaler, AußStrG Section 22 paragraph 43.

26 Polster/Zellhofer, Aktenzugang im Kartellverfahren im Spannungsfeld zwischen Geheimnisschutz und Private Enforcement, OZK 2008/3, p. 103.

27 According to Section 304(2) ZPO, if it was put up in the interest or entails a mutual legal transaction of the parties involved.

28 By way of reference to Section 273 ZPO.

29 Kodek in Neumayer, Beschleunigung von Zivil- und Strafverfahren, 2014, p. 5.

30 Kodek, Haftung bei Kartellverstößen in WiR – Studiengesellschaft für Wirtschaft und Recht (eds), Haftung im Wirtschaftsrecht (2013), pp. 63, 77.

31 Kodek in Neumayer, p. 9.

32 See Ginner, Erstes österreichisches Urteil zum Private Enforcement – Fahrschulkartell Graz, ÖZK 2008, p. 110 et seq.

33 The applicable statutory default interest is 4 per cent (Section 1000(1) General Civil Code (ABGB)), except for claims from contractual relationships between businesses, which is 9.2 per cent +/- base interest (Section 456 Austrian Business Code (UGB)).

34 Section 1331 ABGB; see Csoklich, Schadenersatz nach Kartellverstoß, VbR 2014/112, p. 185.

35 Section 349 UGB; see Kramer/Rauter in Straube/Ratka/Rauter (eds), UGB I, 4th edition (2011), Section 349 paragraph 8.

36 OGH 15 May 2012, 3 Ob 1/12m; see Csoklich, 185; Reischauer in Rummel (ed), ABGB 3rd edition (2007), Section 1293 ABGB paragraph 2a; Karner in Koziol/P Bydlinksi/Bollenberger (eds), ABGB, 4th edition (2014), Section 1293, paragraph 9.

37 For possible calculation methods see Csoklich, ibid.; Abele/Kodek/Schäfer, Zur Ermittlung der Schadenshöhe bei Kartellverstößen – Eine Integration juristischer und ökonomischer Überlegungen, ÖZK 2008, p. 216; Kodek, Haftung im Wirtschaftsrecht (2013), p. 63, 74.

38 In one case, the allegedly injured party was not able to establish that it had suffered damages in follow-on litigation from the Escalator cartel as the claimant (due to lack of contractual documentation) was only able to make estimates of the prices paid to the cartel members rather than the actual prices paid (cf OGH 3 Ob 1/12m).

39 OGH 8 Ob 81/13i; see Kodek, op. cit. footnote 37.

40 OGH 4 Ob 46/12m.

41 BGH 28 June 2011, KZR 75/10.

42 Polster/Steiner, Zur Passing-on defense im österreichischen Kartellschadenersatzrecht, ÖZK 2014, p. 43, 46.

43 OGH 7 Ob 48/12b (judgment), p. 19.

44 Metzler, ‘The Tension Between Document Disclosure and Legal Privilege in International Commercial Arbitration – An Austrian Perspective’ in Klausegger et al (eds), Austrian Yearbook on International Arbitration 2015, 231, 254.

45 Metzler, ibid., 254 et seq. with further references.

46 For details see the FCA’s Guidelines of Settlements: www.bwb.gv.at/Documents/BWB%20Standpunkt%20zu%20Settlements%20September%202014.pdf (last accessed on 1 December 2016).

47 This aspect has been criticised in legal writing, see Kodek, Absprachen im Kartellverfahren, ÖJZ 2014, 443, 450.

48 For further details, see Wilheim, Die Vorteile der Abhandlung von Follow-on Ansprüchen in kollektiven Schiedsverfahren, ÖZK 2014, p. 49.

49 OGH 5 Ob 39/11p; Wilhelm, Kartellverstoß macht alle Kartellanten schadenersatzpflichtig, ecolex 2012/170.

50 OGH 4 Ob 46/12m; OGH 5 Ob 39/11p.

51 Ibid.

52 Section 1302 ABGB.

53 For further details, see Krauskopf/Schicho, Die Umsetzung der Schadenersatzrichtlinie – eine Herausforderung für alle Beteiligten, VbR 2015/121.