Austrian Construction Cartel: New fin(e)dings & Second Thoughts on Leniency

On 11th March 2026, the Austrian Higher Regional Court for Cartel Cases handed down the highest antitrust fine ever imposed in Austria, amounting to € 146 million.

Initially, the decision on STRABAG was already made in 2021 with a fine of € 45.37 million; this fine included the reduction granted to STRABAG for its status as a leniency applicant.

However, during the parallel criminal proceedings, circumstances came to light that showed that STRABAG had not sufficiently fulfilled its obligations to cooperate and provide information under the leniency programme.

The AFCA was therefore entitled to file a new motion to increase the fine (a so-called motion to amend pursuant to §§ 72 et seq of the Non-Contentious Proceedings Act [“AußStrG”]). The Cartel Court was therefore required to rule on this motion.

In its decision, the Cartel Court found that STRABAG had culpably breached its cooperation obligations; the leniency status could therefore not be taken into account when setting the fine.

Background: the Construction Cartel

Within the Construction Cartel the involved companies were held for having the objective of minimising/eliminating competition by fixing prices, dividing up markets, and exchanging competition-sensitive information. In particular, collusive agreements were made in connection with contract awards. To this end, participants exchanged information about the prices they intended to quote in their bids; they also specifically agreed on who would be awarded the contract. The remaining participants deliberately submitted lower, so-called “cover bids”. The collusion involved thousands of construction projects, a large number of which were in the public sector for road building, railway construction and power line construction as well as office and residential buildings, cemeteries, car parks or schools (for more, see the AFCA’s Q & A on the Construction Cartel).

As a side note: the Construction Cartel continues to keep not only the Austrian authorities on their toes, but also the ECJ as it has also quite recently been subject to a preliminary ruling request by the Cartel Court in Vienna. Therein, the ECJ dealt with the scope of the protection of blacklist document within the file of the Criminal File (for more in-depth-information, see another post on this blog).

Review of the fine imposed

Due to its leniency status, STRABAG was already subject to a fine in € 45.37 million 2021 in the final decision of 21 October. The amount of this fine was determined with due consideration of the leniency status and was reduced accordingly.

As part of an investigation in a related criminal proceeding (as bid-rigging constitutes a criminal offence in Austria) by the Public Prosecutor's Office for Economic Affairs and Corruption (“WKStA”), it has come to light (through mutual legal assistance) that (three) other construction projects have likely been involved. This information has, however, not been disclosed by STRABAG under their cooperation obligation (see already in a previous blogpost).

Once the AFCA doubted STRABAG‘s compliance with its cooperation obligations and subsequently filed an application for amendment requesting the Austrian Higher Regional Court for Cartel Cases (“Oberlandesgericht Wien als Kartellgericht”; thereinafter “Cartel Court”) to review and, if necessary, amend its final decision of 21 October 2021. The Cartel Court rejected this application in its decision of 20 October 2022 (27 Kt 12/21y-65), stating that the procedural requirements for a review of the decision were not met: on one hand, because it considered the AFCA’s appeal to be unfounded, as the application was ultimately granted. On the other hand, it held that the procedural remedy of reinstatement can apply only to judgments – but not to the motion initiating the proceedings (such as the BWB’s motion).

The AFCA as well as the Federal Cartel Prosecutor (“FCP”; represents the public interest before the Cartel Court and, in this regard, plays a complementary role alongside the AFCA) appealed this decision. Following the AFCA’s and the FCP’s view, the Supreme Court, however, ruled in its decision of 25 May 2023 (16 Ok 8/22w) that the application did meet the necessary requirements and therefore the appeal was admissible. A retrial would not be permissible if the circumstances asserted could not have had any influence on the decision in the main proceedings from the outset (“substantial gravamen”). The Supreme Court ruled in this case that the AFCA could only have secured a “more favorable decision” for itself (eg, a higher fine based on the updated facts) by amended the application for the fine; it could not have done so with the application initially filed on 14 July 2021. Hence, the Supreme Court found that the AFCA did have a substantial gravamen in this matter. It also found that, unlike the Cartel Court’s view, the AFCA’s conduct could not be considered as “unpredictable” as it was based on a statutory legal remedy (namely §§ 72 et seq of the Non-Contentious Proceedings Act (“AußStrG”)). Therefore, no concerns that would violate fundamental rights could be seen in this conduct (see paras 68 et seq in the Supreme Court’s decision of 25^th May 2023).

As a result, the Supreme Court ordered the Cartel Court to retake the proceedings and to refrain from using the grounds for rejection cited. Notably, in its reasoning for allowing the fine to be reviewed again, the Supreme Court provided a particularly and unprecedently detailed explanation. In the present decision, the Cartel Court ultimately had to determine to what extent STRABAG could be held responsible for failing to report the three construction projects in question immediately and on its own initiative.

Scope of the cooperation obligations and subjective culpability for non-cooperation

Under the Austrian leniency programme (which is strongly oriented on the Commission’s  Model Leniency Programme), companies granted leniency status enjoy numerous benefits (eg, immunity from or a reduction in fines, limited liability, and restrictions on disclosure).

To get to this status – and benefits – they must:

1. provide information that enables the authority to launch an investigation (for the first leniency applicant) or (for all subsequent leniency applicants) information that provides significant added value.

2. cooperate „truthfully, promptly and without restrictions“ to enable the AFCA to fully clarify all aspects of the case.

As part of the cooperation obligation is the availability of the applicant to the AFCA, for example by answering “promptly, completely and truthfully” for further follow-up questions from the AFCA. This cooperation obligation lasts at least throughout the duration of the AFCA’s preliminary proceedings. Furthermore – and this has been the critical aspect in this case – it has to submit all evidence of the suspected infringement that is in their possession or available to them (for more, see the AFCA’s Leniency programme guidelines).

There was no doubt that the three construction projects were involved, that STRABAG had been aware of them, and that this information had not been reported. The crux of the matter regarding whether STRABAG’s leniency status should be maintained was therefore whether it could be subjectively blamed for withholding this information.

The Cartel Court unequivocally affirmed STRABAG’s culpability for this question. In its reasoning, the court emphasized, among other things, that information regarding these three construction projects was accessible to a broader group of STRABAG officials. This very group had also been consistently involved in the cooperation and disclosure efforts, which is why the court was able to establish culpability.

Guidance for judicial practice in setting fines?

This decision is also of interest because it at least provides some insight into how the Cartel Court (or the AFCA) determines the amount of the fine. The court’s case law in this area is highly case-specific, which naturally results in some loss of predictability and transparency.

But first, a brief overview of how fines for antitrust violations are imposed in Austria.: Generally, the Cartel Court imposes the fines for infringements of competition law – but only on application by the AFCA. Therein, the Cartel Court is bound by the amount of the fine in that it may not impose a fine higher than requested by the AFCA. However, the AFCA also has the option of not requesting a specific amount but rather an unspecified amount (a so-called “appropriate fine“).

According to established case law by the Cartel Court, the determination of the fine is at the court’s discretion. The factors for determining the fine are mentioned in § 30 of the Austrian Cartel Act (KartG), but there is no exhaustive list within the legal text. According to § 30 KartG, the gravity and duration, the degree of the undertaking’s culpability, potential profits deriving from the infringement and its economic capacity have to be taken into account when setting the fine. In addition to these explicitly mentioned factors, the circumstances of the individual case and the context of the violation must be taken into account. Based on this, according to the Higher Cartel Court, a comprehensive legal and economic assessment of all relevant circumstances is then conducted. In recent rulings by the Cartel Court, there have been repeated references to the deterrent effect that fines are intended to have, which led to an overall higher level of the amount of the fine.

The only numerical guideline provided by the law is the “cap” of 10% of the total global revenue. According to § 29 para 1 KartG, this upper limit (in the sense of a cap) may not be exceeded. There is also controversy over which fiscal year is relevant for the cap limit. The statutory language refers to the “previous fiscal year,” but leaves open whether this refers to the decision or the violation. Recent case law, however, indicates that the fiscal year preceding the decision is used.

Re-calculation of the fine

In its original motion for the imposition of fines, the AFCA stated that the starting point for the calculation was STRABAG’s revenue in the road construction sector, which amounted to approximately € 371 million. Starting from a base amount (which, however, was not specified exactly in the decision), the AFCA set the amount at EUR 245.3 million without any reductions. The base amount underlying this figure was determined based on the regional and temporal scope of the infringement, as well as the company’s level of involvement; it was explicitly emphasized that a multiplier was applied for the duration of the infringement (2002 to 2017).

At that time, the AFCA took the following mitigating factors into account:

• the exceptionally extensive cooperation provided as the leniency applicant;

• the settlement of the proceedings;

• and the implementation of a certified compliance system in conjunction with an innovative monitoring system as a mitigating factor.

Based on this, in the present case the fine was determined by taking these factors into account – except from the leniency reduction. The fine was calculated as if (i) STRABAG had never been granted leniency status and (ii) as if the original fine (imposed on the basis of leniency status) had never existed.  In addition, a higher base amount had to be set because the more recent revenue figures (ie, the most recent final fiscal year figures available prior to the decision) are now higher.

As a result, the fine imposed now amounts to € 146 million euros; this decision also became final immediately, due to STRABAG’s acknowledgment.

Effectiveness of the leniency programme as underlying premise

In its reasoning, the Cartel Court emphasized the importance of an effective and efficient leniency programme; it also stressed its relevance for public enforcement of competition law in general. This effect would, however, be undermined if a company were not stripped of its leniency status when it deliberately withholds information.

The Supreme Court, too, when considering the admissibility of the motion for a reassessment of the fine, noted that it does not serve the effectiveness of leniency programmes if undertakings are granted leniency (even though they have „knowingly“ concealed concealing antitrust infringements); given that the AFCA „was not aware of this through no fault of its own“.

This rationale is also consistent with the principle of effectiveness, which has been repeatedly and recently emphasized by the ECJ, according to which the effectiveness of the leniency programme as a means of public enforcement must not be undermined.

In this regard, the importance of the leniency programme for public enforcement of competition law is recognized both by the legislature and in case law. However, a downward trend in the number of applications for leniency has been observed throughout the EU/OECD’s jurisdiction (see the OECD’s report from 2023; also the German Bundeskartellamt). Particularly in the context of private enforcement, the challenge of striking a balance between the various interests therefore arises time and again (for more on this topic, see this previous blogpost).

Conclusion

Overall, the decision shows that, from both a procedural and a substantive standpoint, there is a high bar for reopening cartel fine decisions in Austria. This is particularly important with regard to legal certainty as well as the overall attractiveness of the leniency programme.

Given this unprecedented amount, the newly imposed fine may seem harsh at first glance. However, STRABAG was not the undertaking that made the investigation possible in the first place; the investigation had already been initiated by the time STRABAG applied for leniency. The added value lay specifically in shedding light on the vast, overwhelming volume of data that was in possession of the AFCA after conducting investigative measures. The crux of the matter was therefore to systematically process the existing information in order to generate a complete (!) factual picture. In addition to the fact that it is also in ACFA’s interest to fully investigate the case, a complete picture of the facts is also necessary for potential damaged parties. Even if STRABAG did provide information and did cooperate – it is comprehensible that this was no longer considered sufficient to qualify for leniency.

The decision also shows, that determining the amount of a fine can sometimes be difficult to understand, precisely because so many factors must be taken into account. This leads to – and likely necessitates – a highly case-by-case approach, which (while arguably necessary given the significant differences) comes at the expense of transparency and predictability.  However, this decision highlights the (significant) impact that cooperation within the leniency programme has on the fine and how attractive participation in the programme can be. While there has been a significant increase in revenue (from was € 14.7 billion in 2021 to € 17.4 billion in 2024), this alone would likely not justify such a substantial increase in the fine.

Rather, it is clear that reductions of this magnitude are only possible through the leniency programme. This, in turn, shows that the programme is attractive and offers remarkable incentives to the leniency applicant – provided (naturally) that they fulfil their obligations.