In Austria, with the amendments of the Austrian Cartel Act (KaWeRÄG 2021), which entered into force on September 10, 2021, sustainability criteria were explicitly included in Austrian antitrust law for the first time.

As a general rule, anti-competitive agreements and concerted practices, which contribute to improving the production or distribution of goods or to promoting technical or economic progress ("efficiency gains") may be exempted from the cartel prohibition pursuant to Section 2(1) Cartel Act¹, under the condition that they allow consumers (in a relevant market) a fair share of the resulting benefits expressed in the form of economic efficiencies, e.g. lower prices.

The new version of Section 2(1) Cartel Act broadens the limited legal exceptions to the cartel prohibition and sets out that consumers are also presumed to receive a fair share if the efficiency gains arising from the improvement of the production or distribution of goods or the promotion of technical or economic progress contribute significantly to an ecologically sustainable or climate-neutral economy.

It should be noted, however, that since the new Section 2(1) Cartel Act deviates from the general concept corresponding to Art 101(3) TFEU, its scope of application is limited to agreements (i.e. horizontal as well as vertical) whose effects are confined solely to Austria (i.e. do not appreciably affect trade between EU Member States).²

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¹ See Federal Act against Cartels and other Restrictions of Competition (Cartel Act 2005 – KartG 2005); Section 2(1) Cartel Act is the equivalent to Art 101(3) TFEU at the EU level and as such regulates the exemption of otherwise anti-competitive agreements and concerted practices.

² See the principle of primacy of EU law: https://eur-lex.europa.eu/EN/legal-content/glossary/primacy-of-eu-law.html.

Not applicable, see the response to "Are ESG measures/sustainability agreements included in your jurisdictional competition regime?"

On June 1, 2022, the Austrian Federal Competition Authority ("AFCA") published its draft Sustainability Guidelines ("draft Guidelines")³ that relate specifically to the application of the new Section 2(1) Cartel Act, which, as the equivalent to Art 101(3) TFEU at the EU level, concerns anti-competitive agreements and concerted practices. Hence, no such guidance was issued with respect to mergers.

The aim of the draft Guidelines is to provide guidance on how the AFCA interprets and intends to apply the new Section 2(1) Cartel Act when assessing ecological/environmental sustainability agreements.

In contrast to the new sustainability chapter in the draft revised Horizontal Guidelines of the European Commission, which covers all types of sustainability agreements (e.g., inter alia, respecting human rights, fostering resilient infrastructure or ensuring animal welfare)⁴, the draft Guidelines are in view of Section 2(1) Cartel Act limited to specific types of sustainability goals, namely a contribution to ecologically sustainability (including the transition to a circular economy, the prevention and reduction of environmental damage, the protection and restoration of biodiversity and ecosystems, and the sustainable use and protection of water resources) or a climate-neutral economy.

In addition, the draft Guidelines set out that the efficiency gains contributing to an ecologically sustainable or climate-neutral economy must be substantial. This assessment must be done by weighing positive and negative effects whereby efficiencies leading to greater ecological sustainability or climate neutrality must fully compensate for the negative effects on competition. According to the AFCA, such assessment is necessary to exclude any attempts of “greenwashing” aiming at restricting competition while only insignificantly contributing to the alleged green goals.

Further guidance is dedicated to practical implications of the assessment of sustainability agreements, including procedural aspects like the general need for self-assessment as well as the possibilities of obtaining guidance from the AFCA in individual cases according to Section 2(5) Competition Act.

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₃ See AFCA news published on 1 June 2022: https://www.bwb.gv.at/en/news/detail/afca-publishes-draft-guidelines-on-the-application-sustainability-agreements-asking-for-comments.

⁴ See European Commission: https://ec.europa.eu/competition-policy/public-consultations/2022-hbers_en.

Not applicable. 

Yes, the draft Guidelines explicitly state that the parties to the (cooperation) agreement may reach out to the AFCA in advance.⁵ The AFCA may subsequently issue an informal assessment pursuant to Section 2(5) Competition Act (WettbG).

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⁵ See Para. 96 draft Guidelines.

The draft Guidelines contain recommendations for quantifying the effects of sustainability cooperations.⁶

According to the draft, the positive effects of sustainability cooperation can be evaluated using methods of environmental economics. For valuation purposes, it is usually necessary to translate efficiency gains into monetary values. While the draft Guidelines acknowledge that in practice translating efficiency gains into monetary values will not always be an easy task for the parties to the agreement, they nevertheless emphasize the importance of presenting the methods used, the assumptions made and the resulting results in a plausible and transparent manner.⁷

Which method is appropriate in a particular case depends heavily on the individual circumstances. This includes, inter alia, the aspects of environmental sustainability presumed to be promoted, consumer/general public perceptions, any discrepancies between perceptions and scientific evidence, and data availability and statistical measurability.⁸ While in some cases, using results of existing studies and simplified calculations may be seen as being sufficient, in other cases, it may be necessary for the undertakings involved to submit case-specific studies.

This may involve the use of quantitative methods and consumer surveys. The draft Guidelines specifically stipulate that efficiency gains that contribute significantly to a climate-neutral economy should be demonstrated by showing the amount of CO2 emissions saved. In the case of a reduction of other climate-damaging greenhouse gases such as methane, comparability should be facilitated by converting the contribution into CO2 equivalents.⁹

In any event, the undertakings should provide figures that are up-to-date, i.e. from the last calendar years conducted based on a representative sample, and covering a period of time appropriate for assessing the sustainability cooperation.¹⁰ Subjective assessments of the preferences of the general public or consumers in the market by the companies involved are however not permissible.

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⁶ See Para. 100 et seq draft Guidelines.

⁷ See Para. 104 draft Guidelines.

⁸ See Para. 107 draft Guidelines.

⁹ CO2 has a market price in European emissions trading

¹⁰ See Para. 106 draft Guidelines.

Please see previous sections above. 

We are currently not aware of any precedents that already involve ESG/sustainability matters in Austria.

Not applicable.