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Published online by Cambridge University Press: 29 June 2009
Objects of claim
Case 9 Predatory price undercutting agreements – forbearance (cease-and-desist order)
A, B and C all operate gas stations in town X. D opens a new gas station in X in which petrol is cheaper than A, B and C sell it. To protect themselves against the new competition, A, B and C agree to regularly undercut D's price so as to make him close down his gas station. Thus, D is brought to the point of ruin.
Can D claim to compel A, B and C to refrain from price undercutting?
Does D's claim require that an (antitrust) authority be engaged against the conduct of A, B and C?
Can the claim for an injunction also be pursued by an association? If yes, which associations are entitled to take legal action?
Does the conduct of A, B and C constitute an administrative or criminal offence? If yes, who is competent to prosecute the offence, what powers of investigation are there, and what sanctions can be applied?
Austria (9)
(1) The case is one of predatory pricing by collectively dominant enterprises. On the basis of their agreement A, B and C exercise virtually total control over the local gas market in town X, or at any rate have a market share of at least 30 per cent (§ 34 para. 1 a n. 1 KartG 1988 = § 4 para. 2 n. 1 KartG 2005), so that market dominance is presumed under Austrian law.
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