The Austrian Supreme Court questions the possibility of imposing fines for a breach of the merger notification obligation or for participation in a nation-wide price-fixing cartel in case of an unobjectionable error regarding the lawfulness of the conduct (Schenker)

1. Introduction By two orders of 5 December 2011 in Cases 16 Ok 2/11 and 16 Ok 4/11, the Austrian Supreme Court acting as the highest appellate court in competition matters (Oberster Gerichtshof als Rekursgericht in Kartellrechtssachen) questioned whether undertakings can be held liable for having breached the merger notification obligation under Austrian law or for having participated in an Austrian-wide price-fixing cartel infringing Article 101 TFEU when they could not avoid erring on the unlawful nature of their conduct. 2. Background Case 16 Ok 4/11 concerns the so-called Spediteurs-Sammelladungs-Konferenz (Freight Forwarding Agents Consolidated Consignment Conference), a multilateral price-fixing agreement between transport companies covering tariffs for domestic consolidated

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  • European Court of Justice (Luxembourg)

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Hanns Peter Nehl, The Austrian Supreme Court questions the possibility of imposing fines for a breach of the merger notification obligation or for participation in a nation-wide price-fixing cartel in case of an unobjectionable error regarding the lawfulness of the conduct (Schenker), 5 December 2011, e-Competitions December 2011, Art. N° 51093

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