Austria’s Supreme Court, acting as the Cartel Higher Court, has dramatically increased an antitrust fine imposed on German construction machinery group Kiesel GmbH from €240,000 to €2.4 million following a successful appeal by the Austrian Federal Competition Authority (BWB).
The ruling, which is now final, penalizes Kiesel for implementing two separate mergers prior to receiving regulatory clearance, a practice known in competition law as gun jumping. Kiesel, a major provider of construction machinery sales, rental, and servicing, voluntarily submitted retrospective merger notifications to the BWB in 2023 regarding stake acquisitions in Vemcon GmbH, Suncar HK AG, and EmiControls Europe GmbH.
Following an application by the BWB in August 2025, the lower Cartel Court determined that the Vemcon and Suncar transactions constituted illegal early implementations and imposed an initial €240,000 fine, while rejecting the claim regarding EmiControls. Both parties appealed the judgment. Kiesel contested the finding of sufficient domestic market impact in Austria and disputed its level of fault. Conversely, the BWB argued that the original penalty failed to reflect the severity, duration, and deterrence requirements necessary for gun-jumping infractions.
Upon review, the Supreme Court agreed with the antitrust authority, ruling that a tenfold increase was required to meet both specific and general deterrence objectives. The court emphasized that breaching the standstill obligation is inherently serious because pre-merger notifications protect effective regulatory oversight by allowing authorities to evaluate competitive risks before market integration occurs.
In setting the €2.4 million penalty, the higher court weighed several factors. Aggravating elements included Kiesel’s commission of two distinct implementation breaches, both of which endured for a substantial duration and involved a non-negligible degree of fault. The court balanced these against mitigating considerations, acknowledging Kiesel’s voluntary post-merger notifications, its full cooperation during investigations, and the relatively small geographic size of the affected domestic Austrian market.
Under Austrian law, early implementation of reportable mergers can attract financial penalties reaching up to 10% of a corporate group’s total global turnover from the preceding financial year.