Antitrust Source: That is an interesting topic for Austria. Many countries have a long tradition of competition law enforcement, a strong competition culture. Austria is not one of them. We discussed already that the Authority was very small at the beginning and there was always politics involved, including when your appointment was delayed because of political reasons.
Does that enabling environment affect the way the Authority can act, or is this changing now as you feel there is more political and public support for robust competition enforcement?
Natalie Harsdorf: I will share with you a historical fact that also links us to the United States. There is a report that should be also in the archives of the U.S. government from a Mr. Harry Johnstone from 1951. He analyzed on behalf of the American government, the Austrian competition landscape. It is a very interesting report and I have a copy of it.
His assessment was that it was not a question of where cartels were within the Austrian economy, but the whole Austrian economy was based on cartels after World War II due to many things that happened in the past. His view was that it would be very difficult to transform the Austrian economy from a noncompetitive one to a competitive one and many, many steps had to be taken. It is a very interesting report.
Looking at the landscape now, I think we have come quite far. As an enforcer, I also see it as an opportunity. I joined the agency in 2009, and I think I was lucky to come to the agency at a time when we could really start a transformation process, build up an institution, build up a reputation, and build up the trust of the public, and a lot of firsts in doing different kinds of cases.
Now our track record. Last year, we had six leniency applications and France had seven, which I think is pretty good when you look at the size of the countries. Last year, our agency brought forty cases before the Austrian Cartel Court. We sent several mergers into Phase II.
I think we have a very solid anti-cartel track record. We busted the biggest cartel ever found in the Austrian market in the construction sector with over €180 million in fines. Several hundred individuals are being prosecuted in that case.
I think it is a privilege to serve my country and be a part of that transformation process to make our economy work for citizens and for businesses and to be open and contestable.
Antitrust Source: You have been with the Competition Authority for many years, led the Competition Authority as interim head, and now have been appointed head. Perhaps you can briefly describe your professional background.
Natalie Harsdorf: I was lucky enough a few years back to do a secondment at the Canadian Competition Bureau when John Pecman was still the Chair. He had started as an intern and ended up as head of the Canadian Bureau. At the time I was head of Legal and I told him, “What you have done is a career I would like to have,” and today, I am lucky enough to say that I am the Chair of our agency.
If you have worked for an agency for a longer time, then I think the benefit is that you know the strengths and weaknesses, and when you have the possibility to change things, you know exactly where to start. I have the trust of my team, so that is very enabling.
I am always with one foot in the academic world. I teach at two universities. I did a Ph.D. in procedural competition law. I am publishing quite a bit. I have edited a volume on competition law in Austria, a substantive volume, the biggest one to this point. My background is enforcement and academic work. I have also worked for a long time in all that regards international cooperation of our agency.
Antitrust Source: Having been at the Authority for so many years, what internal changes did you experience? You said already that the Authority has grown, that you have to some extent more enforcement powers, but what changed internally in the Authority over the years?
Natalie Harsdorf: What I saw when I took over as Acting in 2021 is that we had a lot of talented people who were ready for a senior role in the agency, so one of my first steps was to see how we can bring a bit more structure to the agency work and also to enable people’s careers.
Many different new units were created and departments were created. That was a development that has taken from 2021 until now, because you also need a budget for that. Fortunately, that has worked to get the support of the government for that transformation process of the agency.
I have also seen, and I think many agencies have seen, that you need now much more specialized people. For example, for our forensics, artificial intelligence, and data analysis departments we need people with very particular skills as you cannot hire generalists for that; they already need a certain skill set and then you can develop them. I think that is something that other agencies see as well.
I think also in terms of lawyers and the economists we hire we look for people who have already a high level in their education in the field. That has also changed since the inception of the agency.
Antitrust Source: When someone takes over as a new head of an authority, there will always be the expectation of new ideas and new goals. There will always be some element of continuation, but there will also be some changes and new directions.
You already explained the restructuring of the authority and the encouragement of your staff, but what did you see as “This is a vision or a goal that I want to realize as the leader of the Authority?”
Natalie Harsdorf: I think the Austrian Authority has a very solid track record in fighting against cartels. In two other areas I thought that we could do a bit better.
One is merger control. We have a different approach now in the agency, so we send more mergers into Phase II. I have increased the number of economists working in my team so that we are more efficient also in doing that.
Another area is abuse of dominance where we have seen in Austria a lot of private litigation. But there is also public interest in prosecuting abuse of dominance, so now we are taking on abuse-of-dominance cases as an agency.
I think merger control and fighting against abuse of dominance go really to the core of the structure of the economy and to keeping markets open, so we have to see that there are no long-lasting negative effects on the market. It goes to the core of what we as competition authorities should do.
Antitrust Source: To move on, cartel enforcement is still the core mission of competition law enforcement. You mentioned already the construction cartel that was a headline-grabbing case. Maybe you can quickly summarize what the findings were and then we can talk a little bit about what the longer-term effects of this case will be.
Natalie Harsdorf: I think one of the success stories of interagency cooperation is that we managed to crack this construction cartel. The beginning of the case was that police officers from the tax police found a folder during a raid and, because we have good cooperation with other enforcement agencies, this folder was brought to us and we were able to read the content in a different way and to identify that this was about a cartel. That was the first step because it easily could have happened that we never saw that. So that shows how important good cooperation is.
I think what was very successful was also very quick organization of dawn raids simultaneously at over a hundred sites in Austria, so it involved many police officers. Then we also managed to get through the data in a reasonable time. Later, three leniency applicants came in.
We are close to finalizing this case. This year, I think we will bring most of the companies to court.
Antitrust Source: Do you see longer-term effects of the publicity of the case? You mentioned already leniency applications have increased. Of course, competition law enforcement should improve compliance, so is it your impression that this case also increased awareness which may lead to greater respect for competition law norms?
Natalie Harsdorf: I definitely see that. Since the contracting authorities also now see that they might get damages and that they might have been victims, I am sure that changes something in their awareness of competition law.
I think also in the public awareness it certainly has gained the Authority a lot of reputation. Although of course for the consumers I think other sectors are maybe even more relevant—like electricity, gas, and food—I definitely hope that also in terms of fighting against corruption this case is a landmark case certainly.
Antitrust Source: You mentioned the construction industry, where most large projects are awarded through government contracts. Is there interest among procurement authorities also work with the competition authority? Do you cooperate with procurement authorities?
Natalie Harsdorf: We are working on building an advocacy campaign together with the anticorruption office that is part of the Ministry of the Interior, and we have an ongoing process with the Regional Courts of Auditors. I think those two initiatives will have effects in terms of creating awareness, but that is a long-term process.
Antitrust Source: In principle, public procurement cartels could also be criminally prosecuted in Austria. Did that happen in connection with this case and did you work with the prosecutor?
Natalie Harsdorf: I have a very, very good relationship with criminal prosecution. We work hand in hand basically. We do dawn raids simultaneously. That is really exceptional for Europe.
In these cases we are talking also about allegations of serious fraud. What is particular to the Austrian legal system is that the employees who work for the leniency applicants—not only the immunity applicants but also the leniency applicants who were involved in the cartel—they can be exempt from criminal prosecution, so that is a strong incentive for companies to step forward and cooperate.
Antitrust Source: So there could be criminal cases?
Natalie Harsdorf: There are open criminal proceedings against individuals, yes.
Antitrust Source: You mentioned that mergers is one of the focus areas for you. For lawyers active in merger control, Austria is a well-known jurisdiction—quite frequently, there are international transactions that do not require notification in most jurisdictions, yet must be notified in Austria and Germany.
Maybe to start, how many notifications approximately does the Authority see?
Natalie Harsdorf: We get approximately 300 merger notifications per year. We look into all of them, so there is no simplified procedure for that. We have four weeks minimum and maximum of six weeks to decide whether we send a case into Phase II, so we do a deep analysis before the Cartel Court.
We have turnover thresholds, but we also have a transaction value test, which means that we can also cover transactions where one of the parties does not have any turnover yet, which typically occurs in pharma and digital. Based on that transaction value test, we have been able to look into a number of very interesting mergers and also refer cases to the European Commission, which is a particularity of European law that we can send cases to Brussels.
Antitrust Source: There were a lot of interesting ideas. Let’s unpack this a little bit.
If you say about 300 per year, how many of them would then end up before the Court, which would be roughly equivalent to a Phase II investigation?
Natalie Harsdorf: Now we are sending approximately four or five cases per year. Then we also have cases where we negotiate remedies in Phase I. My policy is that, if it is not clearcut that the remedies fully address the competition concerns, then in my view that is a case to be negotiated before the Cartel Court.
Antitrust Source: That suggests that about one percent of notified mergers go into Phase II. Is there a concern that you get too many notifications if the share of Phase II investigations is so small?
Natalie Harsdorf: We had a change that was suggested by us that was implemented in 2021 regarding the turnover thresholds. That led to us having no longer like 500 notifications but 300 notifications. It was difficult to convince the legislators to limit our review actually. I do not see any changes here upcoming.
I think we have organized ourselves procedurally and institutionally in a way that we can handle the caseload. We have like a pre-warning system, and then the case will be dealt with in a different way than if there is no pre-warning alert in the case. I do think that we look at the right mergers now.
Antitrust Source: If you could, would you try to better target the notification thresholds to eliminate some of the 300 notifications and the work burden that comes with them?
Natalie Harsdorf: I think at the moment we can handle it. I think for us the change that we had in 2021 was important for us because it was really a bit too much. I personally think that merger control is extremely important and we should not relax on this. We will have to be very cautious to further narrow the length.
Antitrust Source: You briefly mentioned the transaction value-based threshold. What has been your experience in this respect? Clearly, the transaction value-based threshold was designed with digital and pharma mergers in mind. Did that play out, or does the alternative threshold catch transactions across all industries?
Natalie Harsdorf: We get around twenty notifications per year based on that threshold. I think it has enabled us to look into digital mergers or refer them to the Commission that were extremely relevant—like Facebook/Giphy, Facebook/Kustomer, Apple/Shazam, Adobe/Figma—the latter all cases that the Commission could look into because we referred them. I think it has proven to be a good additional threshold apart from turnover.
Antitrust Source: Speaking about referrals, you mentioned already you referred cases where you have jurisdiction over the merger. Adobe/Figma is an example. With the new interpretation of Article 22 EUMR, you could now also refer mergers to the Commission when the Austrian thresholds are not met.
What are your thoughts about it? How does the Austrian Competition Authority envision its role?
Natalie Harsdorf: My take on this was always that in Austria we already have wide scrutiny that is based on very clear legal rules and we are the jurisdiction that has referred the most digital mergers to the Commission based on our legal provisions, so I did not see a need to work with this interpretation of Article 22. Being in the comfortable position that we can already refer very relevant cases to our colleagues, I took the stance that we will await the jurisprudence of the Court of Justice before we take action under this new interpretation.
Antitrust Source: So Austria has not yet referred in accordance with the new Article 22 interpretation?
Natalie Harsdorf: No, we haven’t.
Antitrust Source: You let others do that.
Natalie Harsdorf: Yes. We haven’t done that, no.
Antitrust Source: A broader question in this realm is that if you go back twenty years, when the International Competition Network started to develop its recommended practices in merger review, the focus was very much on predictability, objective factors, and making the process as focused and targeted as possible to reduce burdens both for the notifying parties and the agencies.
Today the narrative has changed. Germany and Austria have additional thresholds which raise interpretative questions. The new Article 22 interpretation reduces predictability. What do you think explains that shift toward a different narrative? Do we still get the balance right between making notification obligations predictable, helping in deal planning, helping the parties to anticipate what they have to do, and the need to control potentially problematic transactions even if they do not meet the objective thresholds?
Natalie Harsdorf: On the other hand, you can see that quite a number of economists have raised concerns that we have too much concentration in a number of markets. There is a study by two renowned economists on Austria and concentrated markets. Their view—with a note of caution, like many economists add—is that concentration has increased substantively in Austria. I think that tells us that we need to be very vigilant to use the instrument of merger control.
That being said, I think agencies should make an effort to be coherent with other agencies as far as is possible. I think one good example is the guidelines on the transaction value test that we drafted together with our German colleagues. I think it is very exceptional for two agencies from two independent countries to have common guidelines on thresholds. The only main difference that we identified in our regulations is that our test starts at €200 million and theirs starts at €400 million. It shows a big effort to make it easier for companies and lawyers to check if they have to notify a merger in Germany or Austria respectively.
Also in other merger cases, if I can talk about the Facebook/Giphy merger, which we did not refer to the Commission and dealt with it ourselves, that is an example of international best practice. We had weekly calls with the Federal Trade Commission, the UK Competition and Markets Authority (CMA), and the Australian Competition and Consumer Commission (ACCC), and I think that is pretty exceptional.
Antitrust Source: You had different outcomes also in this case.
Natalie Harsdorf: But that’s okay. We have different judges, different courts, but we all saw the merger as critical, maybe to a different extent; and also there would have been remedies. In Great Britain it was blocked. But I think it is important that we have a process of cooperation.
Antitrust Source: In connection with mergers, we touched of course on the digital economy. There can be no competition law talk without talking about digital issues.
If you look at the typical questions that come up in the context of digital players, they tend to focus on the very large players, global platforms, and potential competitional concerns associated with their business models.
In that space what do you see as the role of a smaller competition authority that is not the home country to very large platforms? What is the Authority doing in this area?
Natalie Harsdorf: First of all, although Austria is in territory and number of citizens a rather small country within the European Union, we have a strong economy and strong industry. When you look at the GDP, we play in a very different league than if you just look at the number of citizens.
We do have a very strong startup scene, for example, and these SMEs and startups need opportunities. For that we need the Digital Markets Act (DMA) to enable opportunities and create contestable markets.
My take on the DMA is that it should create opportunities for business and allow other businesses to evolve.
I think the national competition authorities play a role, first of all, where the Digital Markets Act does not cover all kinds of business models, it does not cover all kinds of digital enterprises, so it has a very limited scope; but also in Austria our government enabled us and gave us a role when it comes to the DMA, so our Authority sits in the advisory committee which plays a role in enforcement. I personally sit in the high-level group as an elected European Competition Network (ECN) member. So we do have a role. That is not the case in all countries.
Also, in the past we have done cases in digital markets. We had a successful case against Amazon together with Germany. In the end Amazon changed some of their contractual obligations toward retailers. I think that was a successful case. It was good that we were part of these investigations because we had our lens on the Austrian retailers, and they would not have that voice otherwise.
I think there is a role for us, but I am not concerned that we do not have enough of a role because we have so many cases and so many investigations ongoing that I am very happy that the DMA covers and solves a number of issues.
Antitrust Source: But you do anticipate that the Authority will play a more active role in the DMA space in terms of monitoring?
Natalie Harsdorf: My impression is that companies already come to our Authority when they have complaints that may be solved under the DMA, and then we are sort of like a messenger or a mediator and we analyze what they say and get them in contact with the European Commission.
Antitrust Source: Speaking about digital economy and competition law enforcement proper, we have seen recently that some of the EU cases or the theories of harm developed in EU cases are starting to be reflected in national competition law enforcement. Poland already had a case against a local digital platform, the Netherlands is now investigating a local digital platform, and Slovakia has also launched a similar investigation.
Is that something you also see as a priority in Austria? Are there regionally strong players and competitional concerns surrounding their business models or activities?
Natalie Harsdorf: An area where we have to be on our toes is that we are well equipped to understand AI, and I have invested in my team in that regard.
Otherwise, what we get in and what we see consumers are concerned about are very often very traditional markets—so energy, energy prices, and food prices. That is what really is at the core for consumers.
Regarding these big digital platforms, I see the focus more on let’s keep these markets open for other businesses and business models. That, of course, also ultimately benefits the consumer, but the direct impact is maybe not felt as much. So I think we should not slow down enforcing in traditional markets.
Antitrust Source: Is there any strong regional platform in Austria that is small compared to Amazon but locally significant because of language or cultural preferences?
Natalie Harsdorf: We had a merger a while ago where a possible negative outcome could have been that Willhaben, a trading platform that is very popular in Austria, would have left the market. In that case it was very important for us in the remedies to make sure that we still had that platform. But otherwise none of the big GAFA (Google, Apple, Facebook, and Amazon) firms have their main seat in Austria.
Antitrust Source: You mentioned how important it is to use competition law to benefit consumers. This reflects a traditional view of competition law which should be concerned about market power and harm to consumers.
One trend, which I call now loosely the politicization of competition law, is that in recent years we have seen growing expectations for competition law to take on other social needs or concerns. Austria is an example in light of its statutory provision making it possible to take sustainability concerns into account in competition law analysis. We worry about workers in the gig economy and competition law should reflect this. We worry about fairness in the supply chain and competition law should reflect this. How do you see these developments, and how do you think that a competition enforcer can handle these types of questions, the tradeoffs?
Natalie Harsdorf: My view of the trends may be a bit different. My perception is that—having had Covid-19; and then, because of the war which is just five hours away from the Austrian border, an energy crisis, and a food supply crisis—I see it very differently.
I think the competition agencies are now more than ever needed to do their core enforcement work. There is a lot to do in that regard, so I don’t even have time to think about if I could somehow have an extended mandate and also take into account other policies. I don’t have time for that because we have our hands full with enforcement.
I think it is legitimate that the legislature, for example, regarding sustainability in Austria, said—and I was actually happy to have a clear rule in the legislature on that—“Okay, under certain circumstances you can take into account efficiencies that might materialize outside the Austrian territory;” but we add this legal fiction to the law that, “since it regards climate neutrality and circular economy in a globalized world,” so that in the end we have this legal fiction that the Austrian consumer will also benefit. But the scope is very narrow, and it doesn’t have a negative impact on our enforcement, so I think that is legitimate. Laws evolve over time.
But, other than that, I think it is more important that we work in our advocacy work on emphasizing again and again how important open competition is to make markets work and that we have to be very careful about protective tendencies, protectionist tendencies, and building up areas again, particularly in Europe.
Before the war on Ukraine, we have had peace in Europe for a long time, and much of it was built on the idea of having a common single market and building an economy that is based on fair and open competition. So I think there is a strong link between democracy and competition law and policy.
Antitrust Source: Austria is one of the jurisdictions where fairness in the supply chain is an important topic. I understand enforcement of a particular statute concerning supply chain fairness falls within the competition authority’s remit.
That again raises the question: is there a tension between protecting the supplier and potentially increasing the costs of the retailer and your declared goal of making sure that competition law benefits the ultimate consumer?
Natalie Harsdorf: We have two mandates in that regard. We are in general able to take before courts companies that act in an unfair way, so we have this competence. Also, on top of that, we have a competence which is based on a particular new statute which concerns unfair trading practices in the supply chain in the agriculture sector.
I will give you one good example of a case we recently brought before the Cartel Court, which I think shows that if you look at the individual cases there is no conflict. For example, this case concerned real apples, not apples in the GAFA sense. In that case we brought a wholesale retailer before the Cartel Court because we saw that he was systematically paying apple farmers extremely late, after they had delivered their goods and done their part, and they were just not getting their money. That is, for example, something that is not allowed as an unfair trading practice. They should get their money, and I don’t think there will be a negative impact on the consumer if they get their money before sixty days, which is the time limit, or after sixty days. I think it is also in the interest of consumers that we still have farmers who actually follow their profession and have a reasonable, plannable working relationship with retailers.
Antitrust Source: Going back to a topic that has already come up a couple of times in our conversation, the role of the Competition Authority in competition advocacy. Do you see this role as a priority? Do you have examples of recent advocacy activities and especially also examples of advocacy efforts that made a concrete difference?
Natalie Harsdorf: For me it is always important to think long term when it comes to advocacy.
An initiative that I started within the agency and that has evolved in a very, very nice way is a competition moot court that we have organized now for ten years as an agency together with student organizations. We are now at a point where Austrian universities give credits to students if they participate, so it is like having taken part in a lecture, so they can make it part of their curriculum.
Law firms take part in it because each law firm can sponsor one team. This year, the President of the Austrian Cartel Court is heading the jury.
This has even become an export product because, when I did my secondment in Canada, I explained that initiative to them, they completely copied it, and they have now for quite a few years conducted a successful Canadian competition moot court across the territory of Canada.
It costs very little. It enables us to get into contact with hundreds of students who have later written their Master’s theses and their PhD papers on competition law and policy and have stayed in touch with the agency. This has a trickling-down effect. It is an example of an advocacy that does not cost much but has a strong long-term impact.
Antitrust Source: Has it been a good recruitment tool?
Natalie Harsdorf: Yes, absolutely. You got it. You nailed it. That is also one of the main benefits.
Antitrust Source: Advocacy is also often related to persuading legislators or regional governments to change their practices and think about a more competitive structure of the market. Is that something that has come up where you can report success similar to the moot court?
Natalie Harsdorf: A very useful competence and possibility that we have as an independent authority is that we are allowed to give independent legal opinions on any legislative proposals that are being discussed in Parliament. It is something that not all authorities have. It has proven to be a very good advocacy tool and possibility because we have had a voice in legislative processes via this possibility, and we have seen in the past that points were taken on—of course not always—but, even if our opinion is not reflected, maybe later on when there are problems then parties might come back to them and say, “Oh, there was a recommendation; maybe now we should amend that.” So it has been useful.
Another area is when we do our sector inquiries we provide a lot of information on markets, how markets function, what competition problems there are, and we also give recommendations.
For example, in the e-mobility sector where we did a sector inquiry, we offered recommendations as part of the results of our sector inquiry and many of them were followed up on by the legislature. We recommended more transparency, easier consumer switching, and so on. We have now made a second report on what has happened since we published the sector inquiry results, and in the analysis you can see that quite a few of our proposals have been implemented.
Antitrust Source: Going back to your earlier comment about Austria in the days of the Johnstone report, competition now seems to have really taken hold and you are talking about serious advocacy efforts. What happened? What made it possible to change public thinking about competition and markets?
Natalie Harsdorf: I think the first big step was when the Iron Curtain fell and trade could go into a new direction, and a lot of Austrian companies benefited from going to the East and working in these newly opened markets. I think that was the first big step in the mindset because you could see that we benefit from open markets.
The second step was certainly that Austria became in 1995 a part of the European single market. I think it was nonetheless an important step when in 2002 an independent Competition Authority was created and in 2005 a modern competition law was introduced, and since then we have taken step and step and step. That being said, starting from that report in 1951 and looking at now, you can still see that we are still in a transformation curve and there is still a lot to do. I think we cannot rest a single day and not advocate for the benefits of competition because the wheel can always go backwards.
Antitrust Source: I’d like to return to an issue that you touched upon very early on, the institutional environment. As you mentioned, Austria is almost now a unique animal in Europe in terms of being a Competition Authority that must go to court to obtain decisions.
From your own perspective is this a good system? Do the benefits outweigh the potential disadvantages? If you could change the system, would you change it?
Natalie Harsdorf: I have always been a big fan of a judicial enforcement model. It is a point where I have also in the past—now vocally but in the past silently—disagreed with the former leaders.
For me the benefits of having a very clear sense of mission in the agency of what our role is and focusing our resources on the prosecutorial role brings a lot of advantages.
Especially in a rather young enforcement surrounding, I would say having a specialized Cartel Court handing out very high fines, as they did in Austria, gave us extra legitimacy because what we proposed was then looked at by an independent court and they reached the same conclusion. I think that also helped legitimize what we do.
I think definitely an important ingredient for it to work in Austria is that we have a specialized court with judges who have had a long career already and who now really focus on competition law. That is certainly an important ingredient.
I think for Austria it has worked really well, but it only works, I think, if you have a well-functioning judicial system in place.
Antitrust Source: Does this require any special skills within the Authority, a litigation department?
Natalie Harsdorf: Exactly. We do have a specialized litigation department and they ensure that the case teams are well accompanied before the Cartel Court. They represent the agency of course with the support of the case team. That is important.
It has also made us a very attractive employer for lawyers to switch from private practice to our agency. I have done it myself, I have pleaded quite often before the Cartel Court, and it is fun.
Antitrust Source: One last question—if you think of something that the Austrian Authority currently does not have or cannot do, is there something in your toolbox or in your powers where you think there is a gap that limits your effectiveness, something you would want to change?
Natalie Harsdorf: I think, of course, that there are some proposals across Europe on strengthening the instrument of sector inquiry which could merit discussion. I think we will have to make it fit within our enforcement model, so I would think the Cartel Court should play a role there definitely. I think that is something to discuss.
Other than that, I am working on seeing whether we can find a way to increase the independence of the agency when it comes to dealing with its resources in terms of budget. I think it is important to have full independence also when it comes to dealing with your resources because that rounds up the independence on decisions on merits.
I think we are on a very good track and I look optimistically into the future.
Antitrust Source: Thank you very much.
