Important amendments regarding Austrian merger control law will enter into force on 1 January 2022 as part of the Austrian Cartel and Competition Law Amendment Act 2021 (KaWeRÄG 2021), and are expected to lead to a substantial reduction in the number of Austrian merger control notifications.
1. The good news: Finally, the Austrian merger control regime will provide for a second domestic turnover threshold in the regular turnover test.
Today, under the current regime, concentrations must be notified to the Federal Competition Authority (FCA) prior to their implementation if, in the last business year preceding the transaction, the combined aggregate turnover of the undertakings concerned was:
1. more than EUR 300 million worldwide,
2. more than EUR 30 million in Austria, and if
3. at least two of the undertakings concerned had an annual turnover of more than EUR 5 million worldwide.
Transactions caught by this test are only exempted from the filing obligation (de minimis exemption), if:
– only one of the undertakings concerned had more than EUR 5 million in Austria and
– the combined worldwide turnover of the other undertakings concerned did not exceed EUR 30 million.
As from 1 January 2022, the filing requirement will exist only where the undertakings concerned generated more than EUR 30 million in Austria, and at least two undertakings concerned achieved Austrian turnover of more than EUR 1 million each. Only the domestic threshold is amended, the other thresholds (in particular the de minimis exemption) are not amended. In short, the long awaited second domestic turnover threshold is finally introduced into the Austrian merger control regime.
Consequently, unless a transaction falls within the scope of the transaction value test, which remains unchanged and can also be triggered in cases where the target company does not generate any turnover in Austria (NB: the de minimis exemption is not applicable in transaction value test cases), there will be no more merger filings in cases where the acquirer alone meets the domestic threshold while the target generated no turnover in Austria at all or only some thousand Euros.
The FCA has already published a statement regarding the applicability of the second domestic threshold, which is an early Christmas present for the corporate world:
– If the transaction is consummated after 31 December 2021 and the transaction does not meet the new turnover thresholds (i.e. the second domestic threshold is not met), no filing obligation is triggered.
– If the transaction is consummated until 31 December 2021 and the transaction is notifiable under the old (but not under the new) regime, the transaction remains notifiable.
According to the FCA’s statistics, the number of filings is expected to decrease significantly (approx. 40%).
2. The bad news: The filing fee will increase
The statutory merger filing fee in Phase I will increase from EUR 3,500 to EUR 6,000.
3. The technical news: The SIEC test is introduced in addition to the market dominance test
So far Austria is one of the few merger control regimes, which still applies the dominance test for the substantive assessment of mergers. The KaWeRÄG 2021 now provides that the Cartel Court, which assesses transactions in Phase II proceedings, must prohibit transactions that will likely (a) create or strengthen a dominant market position or (b) otherwise significantly impede effective competition. Other than under the EU merger control regime, the market dominance test is not a sub-category of the SIEC-test, but is applied in parallel.
4. The organizational news: Merger control notifications are shared with the Ministry with regard to FDI.
Immediately following submission, all merger control notifications are forwarded to the Federal Minister for Digital and Economic Affairs who is the competent authority for the FDI assessment. This provision is already applicable to notifications submitted since 10 September 2021. Like in most jurisdictions, the scope of the Austrian FDI regime is very broad and vague. For this reason, it is often difficult to predict whether the Ministry qualifies a transaction as falling under the FDI regime or not.
Already in August 2021, when the new Austrian FDI regime celebrated its first anniversary, the Ministry informed that it had initiated official proceedings in approx. 25% out of 23 cases where there had been no FDI notification and the Ministry became aware of a transaction potentially falling under the Austrian FDI regime through other means (e.g. media, EU cooperation mechanism, etc). It goes without saying that the detection risk of a transaction requiring FDI approval, which is not notified to the Ministry, increases by the newly introduced information sharing process. Against this background, it needs an even more thorough assessment whether an FDI filing is required in addition to the merger notification.
Should you have any questions and require further details, please reach out to us.