Debate After Record Cartel Fine for Rewe
This year, at the end of January, the court increased a cartel fine against Rewe from 1.5 to 70 million euros.
Mayer commented in the "Standard"
The Supreme Court had "undertaken an unconstitutional extensive interpretation" and thereby created a criminal offense, argued Mayer last week in a guest commentary in "Der Standard" (online). According to this, the OGH saw a merger in the "implementation of a long-term lease agreement," but Rewe had concluded the lease agreement with a real estate developer and thus did not acquire a "significant part of the lessor's business."
"If the interposition of a third party, i.e., an indirect acquisition as in the present case, were sufficient to thwart the qualification as a merger offense, all kinds of circumvention constructions would be opened," Strasser contradicted according to Kurier. In the present case, the "relevant assets were seen as the spatial planning approval of an area as a grocery retail in a shopping center," i.e., the lease and the customer base.
Cartel fine against Rewe increased
The Rewe case dates back several years: In mid-2018, the then subsidiary Merkur Warenhandels AG (now: Billa Plus) took over sales areas for a grocery retail in a shopping center in Wels, where a grocery retail had previously been operated. This process was only subsequently registered as a merger with the Federal Competition Authority (BWB) in August 2020, thus violating the merger notification obligation. The German Rewe Group includes Adeg, Billa, Billa Plus, Bipa, and Penny in Austria.
The Cartel Court initially imposed a fine of 1.5 million euros. The Federal Competition Authority and the Federal Cartel Attorney appealed against this. The OGH then increased the fine to 70 million euros at the end of January 2025. "An amount of 70 million is, of course, a dizzyingly high sum for most legal subjects," said Strasser, although the penalty could amount to up to ten percent of the group's turnover. In the case of Rewe, the fine corresponds to only 0.76 percent of the potential penalty framework.
(APA/Red)
This article has been automatically translated, read the original article here.