1. Impact of private enforcement on public anti-cartel enforcement
ICN Cartel Working Group
SG 1 call series
15 December 2015

2. Private enforcement in Austria / ECJ preliminary proceedings launched by Austrian court
Pending private litigation (elevator and escalator cartel)
Access to files:
ECJ Case C-536/11 BWB vs. Donau Chemie
Umbrella-effect:
ECJ C-557/12 Kone AG and others vs. ÖBB Infrastruktur AG

3. Future impact of EU damage directive (also on Austria)
Pending reform of current Austrian Cartel Act
Draft not publically available yet
Very controversial discussions on various points between ministry of justice and Austrian antitrust community

4. Taking the discussion further… (i)
Will the implementation of the EU directive solve pending questions?
Will proceedings consequently be shorter as currently pending questions might be solved?

5. Taking the discussion further… (ii)
Do we really need „access to a file“?

6. Links between public enforcement & compensation (i)
Should public enforcement (even more) encourage (voluntary) compensation by linking it to leniency and/or settlements ?
If yes, how could consumers benefit directly from it?
No / limited litigation costs & burdens
Less time until compensation

7. Links between public enforcement & compensation (ii)
Is linking leniency & obligations to compensation the solution?

8. Links between public enforcement & compensation (iii)
Are settlemens the solution?

9. Links between public enforcement & compensation (iv)
Is treating voluntary compensation
within settlements as a mitigating factor
the solution?

10. Additional questions… (i)
If yes, how could the amount of the reduction be determined?
Where would then be the border between
deterrance and encouragement for compensation?

11. Additional questions… (ii)
How can the amount of compensation be determined?
Determined by a board of independent experts? (UK voluntary redress scheme)
Calculation of gain through infringement?
Are NCA‘s empowered to determine the amount of compensation of possible private damage claims?

12. Fair trial ? (i) Restriction to a fair trial by
voluntary compensation within settlement?
Infringing company can decide whether to volunteer compensation or, if not, to expect a higher fine.
Hence, a company can decide not to make use of their right to a fair trial (and volunteer compensation instead) by accepting a lower fine.
Is that really a voluntary decision?
How much can the amount of the reduction influence such decision?
Would the infringing company be ultimately deprived of its right for a fair trial?

13. Fair trial ? (ii)
Restriction to a fair trial by voluntary compensation within settlement?
Either the infringing company or the authorities (or together) decide the amount of voluntary compensation.
Could voluntary compensation deprive the vicitm of the right to a fair trial?
Is the right to pursue private damage actions subject to the decision of the infringer, if to volunteer for compensation or not?
In case of voluntary compensation, what statute of limitation is to be applied?

14. More questions for discussion
If compensation could be collected by NCA‘s, would creating a pool or alike instead of (reduced) fines ensure more effective compensation for claimants?

15. More questions for discussion
How much deterrance is necessary to disincentivize companies from price fixing?

16. Christina Hummer Saxinger, Chalupsky & Partner Rechtsanwälte GmbH 16
Dr.iur., LL.M.
Partner
Solicitor (England & Wales)
Attorney-at-Law (New York)
Niedergelassene europäische Rechtsanwältin (Brüssel und Wien)
Saxinger, Chalupsky & Partner Rechtsanwälte GmbH
1010 Wien, Wächtergasse 1
Tel
Fax 16