Austria

Authority / Source

  • Cartel Court (Kartellgericht) and Appellate Cartel Court (Kartellobergericht)
  • Federal Competition Authority (Bundeswettbewerbsbehörde)
  • Federal Cartel Attorney (Bundeskartellanwalt)
  • Cartel Act 2005

Mandatory / Voluntary

Mandatory

When to notify?

Notification must be submitted sufficiently well in advance for clearance to be obtained before the concentration is “implemented”. Transactions may not be implemented before clearance (standstill obligation).

Threshold(s)

Mandatory notification where, over the last business year:

  • the combined aggregate worldwide turnover of all parties exceeds EUR 300 m; and
  • the combined aggregate domestic (Austrian) turnover of all parties exceeds EUR 30 m; and
  • each of at least two of the parties has a worldwide turnover of more than EUR 5 m.

No mandatory notification (even if the above thresholds are met) where, over the last business year:

  • only one of the parties has domestic (Austrian) turnover of more than EUR 5 m; and
  • the combined aggregate worldwide turnover of other parties is less than EUR 30 m

Austrian law requires the turnover of non-controlled participations exceeding 25 % to be (fully) taken into account.

Specific thresholds (multiplicators 200x / 20x) apply in the field of media mergers.

Obligation on whom

All participating companies are entitled to file a notification.

Consequences of failure to notify

The agreement on the concentration is void as far as it contradicts the ban of implementation. Furthermore, the Cartel Court may:

  • put measures on an undertaking in order to terminate the implementation of an unlawful concentration;
  • declare that the implementation of an unlawful concentration has taken place;
  • impose on each company violating the standstill obligation a fine of up to 10% of the worldwide turnover achieved in the last business year;
  • impose a change of the company structure of an involved undertaking (e.g. forced unwinding) if other measures are not effective.
  • Furthermore, culpable violations of the standstill obligation allow injured parties to claim damages before civil courts.

Consequences of implementing a transaction despite obligation to suspend until clearance

See above (Consequences of failure to notify).

Consequences of implementing transaction despite prohibition decision

See above (Consequences of failure to notify).

Stages

First Stage – four weeks

Official parties may issue a formal request within four weeks. Request initiates an in-depth second-stage investigation by the Cartel Court. Otherwise, concentration is considered cleared. Four-week deadline is extended to six weeks if notifying party requests the extension.

Second Stage – five months

Must be completed within five months, otherwise concentration is deemed cleared. Five-month deadline is extended to six months if notifying party requests the extension.

Foreign-to-foreign mergers caught?

Foreign-to-foreign mergers are caught if the thresholds are met and the concentration affects the Austrian market.

Treatment of JVs

JVs fall into the scope of merger control if the JVs permanently fulfil all the functions of an independent economic unit.

Up to date as of 1 September 2014

Contact points

This manual is intended only to provide an overview of the merger control rules and regulatory requirements in the EU, the EEA and the European countries listed. The information and views expressed in this manual are not necessarily comprehensive and do not purport to give professional advice. If you would like further information, please contact the following:

CMS Reich Rohrwig Hainz Rechtsanwälte

Gauermanngasse 2
1010 Vienna
Austria
T +43 1 404 43 0
F +43 1 404 43 9000