EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

services for other companies’ ability to access upstream or downstream markets, (ii) access to data, and (iii) network effects. Also, and irrespective of effects to digital markets, the notion of relative dominance is strengthened in that is now explicitly mentioned in a separate section of the amended act. An undertaking shall also be deemed to have market dominance if, as a supplier or a buyer, it has a superior market position in relation to other undertakings in its business dealings; such a position exists in particular if these other undertakings are dependent on the establishment or maintenance of the business relationship in order to avoid serious commercial disadvantages. The Austrian legislation thus builds on recent case law of the Austrian Supreme Cartel Court further detailing the conditions of market power vis-à-vis a single business partner (by way of economic dependency) and irrespective of the finding of “absolute” dominance based on market definition (Case Buechl v Peugeot Austria , Wegener/Schwenker, 2020). Furthermore, the existing concept of “relative market power” is expanded to include providers of intermediation services in multi-sided digital markets who will be deemed dominant if their customers depend on access to these intermediation services. The 2021 amendments also introduced a new power of the Cartel Court – upon application – to render decisions ascertaining a dominant market position of an undertaking operating in a multi-sided digital market: A new procedure is introduced allowing the Official Parties (i.e., the FCA and Federal Cartel Prosecutor) and the regulators to lodge an application with the Cartel Court requesting it to declare that an undertaking operating in a multi-sided digital market holds a dominant position. Such a proceeding does not require an allegation of an abuse of a dominant market position. Therefore, once such a decision has been rendered, the existence of a dominant position will no longer have to be established in a subsequent proceeding alleging an abuse of dominance. According to the legislative materials, this new procedure is designed to enable market participants (or the regulator) to take action against abusive market conduct more quickly in abuse-of-dominance proceedings (Zöchling, ecolex 2021). However, this new power applies to absolute market dominance only, not relative market dominance. A company that was declared dominant can request the Cartel Court to declare that the dominant position no longer exists if the relevant factual circumstances that were the basis for the declaration of dominance have changed. 4. Merger control The changes of most practical relevance introduced by the KaWeRÄG 2021 presumably concern the provisions on merger control (Hlina/Wollmann, ecolex

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