End of August 2016 saw the start of the expert review of the bill for the amendment to antitrust law, a bill long awaited and hotly discussed during the preliminary stages. Implementing an EU Directive, the amendment strengthens the position of cartel victims and buoys up private enforcement, a remedy both desired and apprehended. But other changes – real big ones – fail to materialise; especially the roles of the competition authorities remain unchanged, contrary to the efforts made by the Austrian Federal Competition Authority (Bundeswettbewerbsbehörde, BWB) in this respect to gain the desired competency for also imposing sanctions.

Infringements of antitrust law will cost cartel members even more dearly in future as the amendment will make it easier to assert claims for damages; furthermore, it gives extensive additional rights to victims of cartels.

The group of potential claimants and defendants is significantly enlarged: Apart from parties purchasing directly from the cartel members, also parties injured indirectly (including final customers) can take action against the cartel members, and – as another new feature – they can do against any of them. The cartel members are jointly and severally liable and therefore each of them has to answer to all victims for the wrongdoing of all parties participating in the cartel. Preferential treatment is afforded to witnesses revealing a cartel, making it clearly more attractive to apply for leniency.

And it becomes significantly harder for cartel members to succeed in their role in a lawsuit: In future, horizontal arrangements between competitors (cartels) will be presumed by law to have caused damage. This means that the cartel member must prove that it was not responsible for such damage; in practice, it will be difficult to furnish such proof.  In contrast, the claimant is relieved of such burden of proof, which will make it much easier to assert a claim. Moreover, the parties to the dispute in proceedings for damages may request the court to order the disclosure of evidence if the material is under the control of the opponent or a third party and provided that disclosure is proportionate. This novel feature not only steers the Austrian system towards “discovery” as provided for under US law but also provides the injured party with the opportunity to access the files of the competition authorities. This should remove the major difficulties relating to evidence, and such subsequent opportunity must be considered in any defence strategies to be applied in antitrust proceedings; preferential treatment for the witness revealing the cartel applies also in this respect.

Furthermore, in future the period for asserting damage claims will be longer – it was extended to five years as from knowing what the damage is and who caused it – and the statute of limitations will be suspended by ongoing proceedings. In absolute terms, the period of limitation will be ten years from occurrence of the damage.

All this entails a major increase in the risks attaching to participation in a cartel and makes it much more attractive to assert claims. The desired effect – strengthening private enforcement – will thus not fail to materialise. And the additional rewards available for witnesses revealing cartels make it even more worthwhile for cartel members to strongly consider opting for a leniency application.