“Edwards Lifesciences v. Jena Valve”
摘要
In order to avoid the creation of monopolies, the competition authorities should have the power to examine cases in all fields of the economy, irrespective of the sector, under competition law in which Sec. 9(1) Cartel Act is not applicable due to the turnover thresholds not being reached, because the undertakings that are acquired at a high price only generate a low turnover. The turnover thresholds relate to the time (i.e. implementation) of the merger as being the relevant point in time for the calculation of turnover and not to the time of the notification of the decision on the need to notify the merger. Possible or planned activities after this date are not sufficient. Only activities that have an impact on the market structure are relevant. Activity on the domestic market is therefore to be measured on the basis of a market-related activity. A significant activity on the domestic market does not refer to any location where assets or resources of an undertaking are located, but to a permanent establishment where economic activity is carried out vis-à-vis national (here: Austrian) consumers. Without a location (associated with an economic activity vis-à-vis national consumers), it is the recognised indicators of the trade sector in question that are relevant. The fact that the target undertaking has a certain market share on the national relevant market is not of decisive importance for the question of activity on the domestic market. All indicators that enable an activity to be attributed to customers on the national market can be considered as relevant indicators in the sector. The fact that a target undertaking only generates low turnover in the domestic market is not of decisive importance in the context of Sec. 9(4) No. 4 of the Cartel Act, if and because the sufficient reference to the domestic market is established by other indicators. However, this does not generally exclude the use of such turnover as an indicator for the affirmation of sufficient activity on the domestic market. Since the generation of turnover on the domestic market is not a decision criterion and the national market can also be sufficiently affected in other ways than by the generation of turnover, activity on the domestic market does not require an existing customer relationship, but can also be directed at merely potential domestic customers, e.g. in the form of advertising. There is not (yet) a corresponding competition for an (attributable) customer when an authorisation is obtained for a product or a patent is registered, so that the EU-wide authorisation of the product marketed or the registration of a (European) patent for several countries does not (yet) result in an activity on the domestic market. The criterion of significant activity on the domestic market in Sec. 9(4) No. 4 CA excludes undertakings with marginal activities. However, the domestic impact of the specific activity on competition in the national market must be assessed, meaning that a relatively marginal activity can still achieve a corresponding order of magnitude. The law is (only) based on the scope of the target undertaking’s activities on the domestic market per se, but not on the value attributable to the target undertaking’s domestic activities. The ratio of the target undertaking’s activities in Austria compared to its activities in other countries is therefore irrelevant.