EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

2. New Sustainability Exemption Traditionally, mirroring Article 101(3) TFEU, Austrian competition law exempts a restrictive agreement from the prohibition of restrictive agreements if (i) the agreement contributes to improving the production or distribution of goods or to promoting technical or economic progress, (ii) allows consumers a fair share of the resulting benefit, (iii) does not impose disproportionate restrictions, and (iv) does not eliminate competition in respect of a substantial part of the products in question. The revised competition law now expressly acknowledges sustainability considera tions as a potential justification for restrictive agreements. It does so by stipulating that consumers are deemed to “also” participate in the benefits resulting from the agreement if the agreement “contributes significantly to an ecologically sustainable or climate-neutral economy”. In other words, if the improvement of the produc tion or distribution of goods or the promotion of technical or economic progress contributes to an ecologically sustainable or climate-neutral economy, this is held equal to a fair share of the resulting benefits for consumers. The Austrian legislature thus appears to be one of the first worldwide to explicitly mention considerations regarding environmental sustainability in competition law context. Technically, the contribution to a sustainable economy is in itself deemed to be a contribution to the improvement of the production or distribution of goods or to technical progress. Also – and this is an absolute novelty – the contribution to sustainability does not need to produce its effects specifically on the affected market but recognizes so called “out-of-market-efficiencies” (Zöhrer/ Reumann, ecolex 2021). The amended Austrian law thus goes beyond current EU law which recognises the benefits flowing from restrictive agreements in principle only “within the confines of each relevant market”, except if the efficiencies materialise in “related markets” provided the consumers affected by the restriction and benefiting from the efficiency gains “are substantially the same”. Whether the new Austrian qualification of “sustainability efficiencies” is compatible with primary EU law and Article 3 of Regulation 1/2003, remains to be seen. 3. Digital markets and dominance Given the difficulties in finding dominance in digitals markets (Thyri, 2020), the KaWeRÄG 2021 expands the notion of dominance in introducing additional factors that can be taken into account when deciding whether an undertaking holds a dominant position, specifically addressing digitalmarkets.The amendment adds three new criteria to be taken into account when assessing the existence of a dominant position, i.e., (i) the significance of a company’s intermediation

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