The Supreme Court (OGH), as the high cartel court, has made a fundamental decision on the prohibited implementation of a merger Rewe Internationally (Billa, Billa Plus…), reports the Federal Competition Authority. Accordingly, there is a fine of a “noticeable” amount. In 2018, Billa Plus, still trading as Merkur, took over a Weiß Handels GmbH food store in Welser Welas Park, but did not register this transaction as a merger with the Federal Competition Authority (BWB).
According to the BWB, their appeal once morest the previous decision of the Vienna Higher Regional Court as a cartel court was fully upheld in the first instance by the Higher Cartel Court. Now the cartel court will set the fine on behalf of the high cartel court in a “noticeable”, but still open, amount.
In October 2021, the BWB filed an application to remedy a violation of the ban on implementing mergers without registration and to impose an appropriate fine for this illegal behavior Rewe submitted to the cartel court. Due to a subsequent merger notification (BWB/Z6052), the BWB ultimately changed the application for dismissal into an application for a declaratory judgment in the ongoing proceedings, while the application for the imposition of an appropriate fine was maintained.
With a decision in May 2023, the cartel court confirmed the existence of a merger requiring notification, but rejected the BWB’s request for a fine and declaratory judgment due to a lack of criminality. This year in June there was an appeal, which now also leads to a fine because the Higher Cartel Court decided in favor of the BWB.
“Groundbreaking decision” for the future
BWB boss Natalie Harsdorf-Borsch sees a “groundbreaking decision that will have a preventive effect in the sense of compliance with existing legal regulations. Especially in particularly concentrated markets, such as the food trade, it is important to be able to subject any further concentration to a competitive review, This cannot be avoided.” The aim of merger control is the public interest of consumers in functioning competition.
Fine of up to ten percent of sales
“A violation of this is – according to the OGH – not a trivial offense,” said the competition watchdog. An estimate of how high the penalty might be and by when it would be determined might not be obtained. Just this much: a fine of up to ten percent of the entire turnover of the company concerned is legally possible – in this case Rewe International.
The OÖNachrichten requested a statement from the Rewe Group in this case. It says: “WWe acknowledge the decision. We received these yesterday and will examine the almost 60 pages in the coming days.”
