I OVERVIEW OF RECENT PRIVATE ANTITRUST LITIGATION ACTIVITY
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 cartel2 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 parties3 as well as for indirectly damaged parties,4 including cases where damages were allegedly caused by cartel outsiders (umbrella pricing).5
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 case6 regarding antitrust damages claims based on umbrella pricing and the Donau Chemie case7 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.8 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.
II GENERAL INTRODUCTION TO THE LEGISLATIVE FRAMEWORK FOR PRIVATE ANTITRUST ENFORCEMENT
The Austrian Cartel and Competition Law Amendment Act 2017 (KaWeRÄG 2017) implementing the EU Damages Directive (Directive)9 became effective on 1 May 2017. As the deadline for the implementation of the Directive expired on 26 December 2016, the provisions on the compensation of harm caused by infringements of antitrust law (Sections 37a to 37m Austrian Cartel Act (KartG) entered into force retroactively as of 27 December 2016 (apart from the provision in Section 37m concerning the imposition of fines).
The new substantive provisions apply to harm incurred after 26 December 2016; for all damages arising before this date, the old regime has to be applied.
The KaWeRÄG 2017 amends the KartG, the Austrian Competition Act and the Austrian Act on Improvement of Local Supplies and Conditions of Competition. The provisions in Sections 37a et seqq KartG introduced new rules for actions for private antitrust damages claims (PADCs). The ordinary civil courts are the competent courts for PADCs.
The rules prescribe a fault-based liability: thus, a claim for damages for antitrust infringements requires that an unlawful and culpable antitrust infringement caused the harm. Section 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 damage incurred and a causal link between the infringement and such damage. However, in the case of a cartel (between competitors), a presumption of harm applies. This presumption is rebuttable, with the burden of proof resting with the infringer. As proving the occurrence of antitrust damages has been rather difficult for claimants in the past, the newly introduced presumption of harm should facilitate the enforcement of claims by parties who have suffered harm from a cartel. However, even with the new presumption, the quantum of damages still has to be established by the party claiming damages.
Section 37h KartG stipulates new rules on the limitation period for PADCs. PADCs are now time-barred five years after the injured party becomes aware of the damage and the identity of the infringer (the absolute period of limitation is 10 years after the occurrence of harm). The statute of limitation for PADC proceedings is suspended during pending proceedings before the cartel court, the European Commission or the NCAs of other EU Member States; investigations by the European Commission or NCAs into possible infringements of antitrust law; and settlement negotiations. In the case of proceedings before the cartel court, or proceedings or investigations by the European Commission or NCAs, the suspension of the statute of limitations ends one year after the decision on the proceedings has become legally binding or after the end of the investigation. Section 37g (4) KartG 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 (Section 37h (2) final sentence).
The application of the specific rules on PADCs in the KartG requires a domestic effect in Austria (effects doctrine).10 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 against:
- a defendant domiciled outside Austria if the harmful event caused by an antitrust infringement occurred or is expected to occur in Austria;11
- a defendant that is domiciled in Austria (with the potential to include the other cartel members as additional defendants in the same lawsuit12); or
- a defendant that is not domiciled in one of the Member States of the EEA if it holds assets in Austria.13
Based on the decisions of the CJEU in Courage v. Crehan14 and Manfredi,15 anyone who has suffered damage from an infringement of Article 101 of the Treaty on the Functioning of the European Union (TFEU) is entitled to recoup his or her losses from the antitrust infringers. This case law also had a significant effect on PADCs solely based on an infringement of Austrian antitrust law.
To date, in cases of umbrella claims it has been held that under Austrian law (if EU law is not applicable), a claimant would not have standing against the antitrust infringers due to a lack of an adequate causal link between the infringement and the losses alleged by the claimant.16 Following the CJEU's decision in Kone,17 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
Effective rules on the disclosure of evidence were only introduced into Austrian law with the KaWeRÄG 2017. These new (procedural) rules apply to all PADCs in which the action initiating the proceedings is filed after 26 December 2016. Therefore, these new rules on the disclosure of evidence also apply to disputes over harm incurred prior to 26 December 2016 as long as only the proceedings are initiated after this date.
Apart from these new rules on disclosure of evidence after a PADC has been filed, general Austrian civil procedural law 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).
Under the new provisions on disclosure of evidence (Section 37j (2) KartG), a party may submit a reasoned request for disclosure of evidence to the court together with, or after having lodged, an action for damages. Apart from requesting the disclosure of (certain) pieces of evidence, a request for disclosure may also cover categories of evidence.
However, to avoid a US-style discovery and fishing expeditions, evidence and categories of evidence need to be defined by the party requesting the disclosure as precisely and as narrowly as possible, taking into account the facts and information reasonably available to it. The court then may order the disclosure of evidence by third parties or the opposing party. The court has to limit a disclosure order to a proportionate extent, taking into account the legitimate interests of all parties (including third parties) concerned. The interest of companies in avoiding actions for damages caused by infringements of antitrust law is not relevant for this assessment. The disclosure may also comprise evidence containing confidential information. The confidentiality of the information has to be taken into account by the court when assessing the proportionality of a disclosure request. If necessary, special arrangements to protect the confidentiality of such information have to be ordered (e.g., excluding the public from the proceeding, redacting confidential information from documents or restricting the right of access to evidence to a particular group of persons).
Moreover, the party being ordered to disclose evidence can request that certain pieces of evidence are only disclosed to the court by invoking a legal obligation of secrecy (e.g., legal professional privilege) or any other right to refuse to give evidence (Section 157 (1) Nos. 2 to 5 Austrian Criminal Procedure Act (StPO). The court then may decide, without consulting the parties, whether to require the disclosure of the evidence. A court decision ordering disclosure may be appealed immediately, while a negative decision may only be appealed together with an appeal against the final judgment.
A party to the proceedings may also apply for disclosure of documents contained in the files of competition authorities (the European Commission, NCAs). However, certain documents – namely information prepared for the proceedings before the competition authority, information prepared during the proceedings by the authority and submitted to the parties, and settlement submissions that were withdrawn – may only be disclosed once the competition authority has completed its proceedings (Section 37k (3) KartG). Leniency statements and settlement submissions are not themselves subject to disclosure (Section 37k (4) KartG).18
So far, no published case law exists that applies the new rules on disclosure of evidence. It can be expected that courts will face a number of exciting and difficult questions when dealing with such a new instrument, previously unknown to the Austrian legal system. In particular, the proportionality test, required for the assessment of every disclosure request, will be quite challenging, as the relevant evidence subject to the disclosure request will normally (with the exception of cases specified in Section 37j (7) KartG) not be inspected by the court, which will then have to base its assessment solely on the assertions of the parties.
The new provisions on disclosure will probably also lead to a prolongation of PADC proceedings due to the following grounds: several rounds for disclosure can be made during the same PADC proceeding (i.e., a party will often only be able to fulfil the requirement of precisely and narrowly defining the relevant pieces of evidence after other documents have been disclosed to it); and defendants will also file requests for disclosure (especially to try to prove that an overcharge was passed on to the next level of the supply chain).
According to standing case law before the KaWeRÄG 2017 came into force, the Supreme Court acted exclusively as a legal instance, which was widely criticised as market definition is a question of fact, not law. Therefore, results of expert reports were verifiable only to a very limited extent by the Austrian Supreme Court. However, the new Section 49 (3) KartG provides that appeals may now also be based on the fact that the file reveals considerable reservations as to the correctness of decisive facts on which the cartel court based its decision. Furthermore, a recent decision of the Austrian Supreme Court sheds some light on the interpretation of this Section and draws parallels to case law regarding a quite similar provision in the Austrian Criminal Procedure Act (StPO).19
VI USE OF EXPERTS
According to Section 351 (1) of the Austrian Civil Procedure Code (ZPO), courts can appoint experts to collect evidence. Such court-appointed experts can have an important role in PADCs, in particular as regards establishing whether an alleged loss has occurred and as regards the calculation of the quantum of damages (see Section VIII for more detail).
Although courts have the capacity to estimate the quantum of damages (see Section VIII) themselves, they often are not willing to make such estimates but rather prefer to appoint court experts, such as economists, to calculate the quantum of damages.
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 instruct private experts and try to introduce their findings as evidence in the court proceeding. In addition, parties may also try to call their private expert as an expert witness. However, private experts appointed by the parties do not substitute court-appointed experts, and 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 same evidential value as 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).20 Recently, Austrian-style class actions have been brought before courts mainly by the VKI, the association for consumer protection, through individual consumers assigning their claims to the VKI, which then tries to combine these claims into a single court proceeding.21 However, as the ZPO does not contain any specific provisions for class actions, courts have differed in their treatment, either treating them as separate single proceedings, by joinder of claimants, or having one test proceeding (while staying the other proceedings), which then serves similar to a precedent for the other claims.22
Despite the growing number of such Austrian-style class actions, courts remain reluctant to accept the pooling of claimant actions for damages; Austrian civil procedural rules are rather based on an individual examination of each claim brought before the court, and actions for damages are tried in various separate court proceedings.
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.23
VIII CALCULATING DAMAGES
Under Austrian law, antitrust damages are limited to the actual loss suffered, which also includes lost profit plus statutory default interest24 calculated from the date when the harm 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.
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.25 Often, injured parties have difficulties establishing the counterfactual hypothetical scenario that establishes proof of their damage.26
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 damage due to an antitrust infringement (i.e., the injured party has to prove the 'first euro' of its damages).27 However, for cartels between competitors, the new Section 37c (2) KartG contains a presumption that the cartel caused damage, thus already allowing an estimate if such presumption cannot be rebutted.28
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 attorneys' 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 for an amount above €1 million) often exceed the actual attorneys' fees incurred based on applicable market rates. The award of costs also includes court fees, including parties' expenses for court-appointed experts.
IX PASS-ON DEFENCES
Section 37f KartG provides that generally the defendant has the burden of proof for passing-on. However, in the case of a PADC by an indirect purchaser, there is a presumption of passing-on of the damage if it has been established that an antitrust infringement by the infringer caused a price increase for the direct purchaser and the products or services sold to the indirect purchaser were subject to this antitrust infringement. The antitrust infringer can rebut this presumption by way of prima facie evidence. Even if a passing-on can be established, a claimant can still claim lost profits from the antitrust infringers.
To prevent overcompensation, the defendant is allowed to summon the respective third party (e.g., the direct or indirect purchaser) to join a proceeding involving passing-on. In such case, the findings concerning passing-on will be legally binding for the third party irrespective of whether it joins the proceedings (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) 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) are often commenced on stand-alone claims.
The professional secrecy obligation of attorneys 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 that is entrusted to them by a client or 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 files). 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. Furthermore, the privilege does not apply to in-house counsel (as they are not admitted to the Austrian Bar).
In PADC proceedings, a person being ordered to disclose evidence can request that certain pieces of evidence are only disclosed to the court by invoking a legal obligation of secrecy (e.g., legal professional privilege) or any other right to refuse to give evidence (Section 157 (1) Nos. 2 to 5 StPO; see Section VIII for more detail). Additionally, an attorney may also refuse to give evidence as a witness if it violates confidentiality (Section 321 (1) No. 3 ZPO). However, clients have the right to release their attorneys from such 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 were not in the hands of the attorney.29 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.30 Based on a recent change to Section 157 (2) StPO, documents and information prepared for legal advice or defence may not be seized even if they are in the domain of a defendant or co-defendant in criminal proceedings.31 It remains to be seen whether this general criminal law provision will also be held to be applicable in the 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 and 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 that it is publicly known 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 antitrust settlements, settlements of public antitrust proceedings32 currently play a very important role in Austria, in particular in cases involving resale price maintenance. This makes it more difficult for private claimants to pursue PADCs against antitrust infringers, 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.33
As PADCs generally fall under the jurisdiction of the civil courts, they may alternatively be adjudicated in arbitration proceedings34 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 or 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 most follow-on PADCs and is confined to cases where the initial contract between the parties to the proceedings 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 is already subject to arbitration proceedings is subsequently initiated before civil courts, the claim in general will also be rejected (Section 584 (3) ZPO).
XIV INDEMNIFICATION AND CONTRIBUTION
According to Section 37e (1) KartG, the participants in an antitrust infringement 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). The amount of contribution depends on the relative responsibility of the participant (e.g., market share, role in the infringement).
Section 37e (2) and (3) KartG contains specific provisions granting special protection from joint and several liability for immunity and leniency recipients (and redress for damage payments from immunity recipients) and small and medium-sized enterprises (SMEs), as well as for redress in the case of settlements (Section 37g).
In principle, immunity and leniency recipients are only liable for the damage caused towards their direct or indirect purchasers. Only in cases where other damaged parties are not entirely compensated by the other parties to the infringement will the immunity recipient also have to step in and compensate those damaged parties that are not the immunity recipient's direct or indirect purchasers.
SMEs having a market share of less than 5 per cent during the antitrust infringement period, and that would be in danger of losing their commercial viability and having their assets devaluated entirely, are also only liable for the damage caused towards their direct or indirect purchasers. This special protection of SMEs does not, however, apply to SMEs that organise an infringement or force other companies to participate in the infringement, or that are antitrust infringement reoffenders.
Where settlements between an injured party and one of the infringers are made, this infringer is in principle no longer liable for any claims of this injured party against any of the other parties to the infringement. Only in cases where the remaining claim of the injured party is not compensated by the other cartelists will the infringer who has concluded the settlement have to step in (such liability, however, can be contractually excluded, for example in a settlement agreement).
Redress for damages payments from other antitrust infringers is subject to the relative responsibility of the participant (see above). Redress from an immunity or leniency recipient is limited to the damage the immunity or leniency recipient caused to his or her direct and indirect purchasers.
XV FUTURE DEVELOPMENTS AND OUTLOOK
The general impression on the market is that the new rules for PADCs so far have not resulted in a large number of new cases. Based on how the Directive was implemented, one could have the impression that there is little interest in establishing Austria as an attractive forum for (private) antitrust damages proceedings, with the federal government's impact assessment even having assumed that the implementation of the Directive will not change the workload of the Austrian judiciary. It remains to be seen whether this assessment applies in practice, as the new provisions include some far-reaching changes as regards both substantive and procedural matters (e.g., regarding the new provisions governing the disclosure of evidence by the opposing party or by a third party). In addition, it is quite likely that Austrian courts will continue referring new legal questions in connection with PADCs to the CJEU for preliminary rulings.
1 Bernt Elsner and Dieter Zandler are partners and Marlene Wimmer-Nistelberger is an associate at CMS Reich-Rohrwig Hainz Rechtsanwälte GmbH, Vienna.
2 OGH 8 October 2008, 16 Ok 5/08.
3 OGH 26 May 2014, 8 Ob 81/13i.
4 OGH 2 August 2012, 4 Ob 46/12m.
5 OGH 29 October 2014, 7 Ob 121/14s.
6 Judgment Kone and Others v. ÖBB Infrastruktur AG, C-557/12, ECLI:EU:C:2014:1317.
7 Judgment Bundeswettbewerbsbehörde v. Donau Chemie and Others, C-536/11, ECLI:EU:C:2013:366.
8 OGH 17 May 2018, 9 Ob 44/17m; the case is registered in the case register of the CJEU under C-435/18, Otis et al v. Land Oberösterreich et al.
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 Section 24 (2) KartG; cf OGH 27 February 2006, 16 Ok 49/05; OGH 23 June 1997, 16 Ok 12/97.
11 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.
12 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.'
13 Section 99 Law on Court Jurisdiction (JN).
14 Judgment Courage Ltd v. Bernard Crehan and Bernard Crehan v. Courage Ltd and Others, C-453/99, ECLI:EU:C:2001:465.
15 Judgments 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.
16 OGH 17 October 2012, 7 Ob 48/12b (ruling).
17 The OGH in this decision asked the trial court to establish the necessary facts with regard to umbrella pricing: OGH 7 Ob 121/14s.
18 This provision (implementing Article 6 (6) of the Directive) will likely be subject to legal challenges, as arguably it conflicts with the CJEU's decision in Donau Chemie, which determined that a general exclusion 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 Article 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 Article 102 TFEU.
19 OGH 12 July 2018, 16 Ok 1/18k.
20 Kodek in Neumayer, Beschleunigung von Zivil- und Strafverfahren, 2014, p. 5.
21 Kodek, Haftung bei Kartellverstößen in WiR – Studiengesellschaft für Wirtschaft und Recht (eds), Haftung im Wirtschaftsrecht (2013), pp. 63, 77.
22 Kodek in Neumayer, p. 9.
23 See Ginner, Erstes österreichisches Urteil zum Private Enforcement – Fahrschulkartell Graz, ÖZK 2008, p. 110 et seq.
24 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).
25 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.
26 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), pp. 63, 74.
27 In one case, the allegedly injured party was not able to establish that it had suffered damage in follow-on litigation from the Escalator cartel (due to a lack of contractual documentation) as it was only able to make estimates of the prices paid to the cartel members rather than establishing the actual prices paid (cf OGH 3 Ob 1/12m).
28 OGH 8 Ob 81/13i; see Kodek, footnote 26.
29 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, pp. 231, 254.
30 Metzler, ibid., 254 et seq. with further references.
31 However. the scope of this new provision is currently subject to several ongoing disputes in connection with the criminal investigations concerning alleged bid rigging in the construction sector.
32 For details see the FCA's Guidelines of Settlements: https://www.bwb.gv.at/fileadmin/user_upload/Downloads/standpunkte/BWB%20Standpunkt%20zu%20Settlements%20September%202014.pdf (last accessed on 18 December 2018).
33 This aspect has been criticised in legal writing: see Kodek, Absprachen im Kartellverfahren, ÖJZ 2014, 443, 450.
34 For further details, see Wilheim, Die Vorteile der Abhandlung von Follow-on Ansprüchen in kollektiven Schiedsverfahren, ÖZK 2014, p. 49.