Cartel-busting practices from Austrian Laender

JURISPRUDENCE

Entities suffering direct harm from cartels (e.g. local self-government authorities) are also entitled to seek redress – this is the essence of the ruling in which the Court of Justice of the European Union held in favour of an Austrian administrative region which was claiming damages from the participants in a cartel of elevator producers. “Entities which do not operate as suppliers or purchasers in the market affected by the cartel must have the possibility of seeking redress of harm arising from the fact that, as a result of the cartel’s actions, they had to grant higher subsidies than would be the case had the cartel not existed”, the Court of Justice stated.

This judgment is significant also for self-government entities in Poland. “I hope that the Court of Justice of the European Union judgment will encourage them to be more active in this area”, remarks Bernadeta Kasztelan-Świetlik of GESSEL, former vice president of UOKiK, while noting at the same that Polish self-government entities have not been availing themselves of the private enforcement procedure.

While claims of this sort will most likely be brought, their scale remains unknown, and the general uptake as well as adequacy of these claims also remains a question mark, among other reasons due to the difficulty inherent in proving the very existence of collusion among cartel participants, comments Dr Robert Siwik, attorney.

Alas, cases concerning collusions in the market tend to drag on for years. That said, there is a way to shorten them. “If, at the tendering stage, there arises the suspicion that we are dealing with a cartel or with collusion which may affect this tender’s outcome, it is worth taking the matter straight to the National Appeals Chamber, asking that such prospective contractors be excluded, in that this procedure takes the shortest time”, offers Artur Wawryło of Kancelaria Zamówień Publicznych.

The full text (in Polish) appeared in the special edition of Dziennik Gazeta Prawna “Samorząd i Administracja” (on 12.02.2020).