Recap after one month with the second domestic threshold and update of the Joint Guidance Paper on the Transaction Value Test by the Austrian FCA and the German FCO
Recap after one month: Introduction of second domestic threshold in the primary turnover thresholds test
In January 2022, only 23 filings were submitted to the Austrian Federal Competition Authority (FCA). In January 2021, the number of filings was – with 55 filings – far higher. Also in 2020 and 2019, the number of filings had been higher than this year (in both years, 41 filings had been submitted). It appears that this is the first visible impact of the second domestic threshold, which entered into force on 1 January 2022.
Under the regular thresholds based merely on turnover, a filing obligation is now triggered if in the last business year preceding the transaction (new rule highlighted in bold):
- the combined turnover of the undertakings concerned exceeded EUR 300 million worldwide,
- the combined turnover of the undertakings concerned exceeded more than EUR 30 million in Austria and at least two undertakings concerned achieved Austrian turnover of more than EUR 1 million each, and if
- 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 turnover exceeding EUR 5 million in Austria and
- the combined worldwide turnover of the other undertakings concerned did not exceed EUR 30 million.
The transaction value test – Why an update of the Guidance Paper?
The recent amendment of the Austrian Cartel Act did not lead to any changes regarding the transaction value test. Pursuant to the transaction value test, a transaction that does not meet the primary turnover threshold test (still) triggers a merger control filing obligation, if
- the combined turnover of the undertakings concerned exceeds EUR 300 million worldwide,
- the combined turnover exceeds EUR 15 million in Austria,
- the transaction value is above EUR 200 million, and
- the target company has significant domestic activities.
More than four years have passed since the transaction value test entered into force. After the Austrian lawmakers introduced the second domestic threshold in relation to the primary turnover threshold test, effective as of 1 January 2022, the antitrust community began to inquire what impact this development had on the interpretation of the transaction value test.
On 23 December 2021, the FCA (together with the German FCO) published an updated version of the Guidance Paper on the Transaction Value Test (Guidance Paper).
What’s new in the Guidance Paper?
The changes in the Guidance Paper only concern the fourth condition of the test, i.e. the meaning and scope of “significant domestic activities”.
The term significant domestic activities is not defined by the Austrian legislature. For a better clarification, the Austrian FCA published a Guidance Paper in cooperation with the German Federal Competition Office (“FCO”) in 2018, since Germany had introduced a similar test.
While an exhaustive list of criteria for measuring the significance of the target’s activities is not provided, the Guidance Paper lists indicators for the assessment. It states that in certain sectors, such as the digital economy and the pharmaceutical industry, domestic activity is generally not measured on the basis of domestic turnover, whereas mature markets are normally characterised by the generation of turnover. Different criteria to measure activities should be applied to different sectors. In the digital sector, the Guidance Paper refers to user numbers (“monthly active users”) or the access frequency of a website (“unique visitors”) as examples.
The location of the target company is also an important reference point, and significant domestic activity must generally be presumed to exist if the company to be acquired has a location with market relevance in Austria.
In 2021, there were the first (two) decisions where the Cartel Court fined acquiring companies for failure to submit a merger notification under the transaction value test.
The key amendments in the Guidance Paper can be summarized as follows:
First, before the introduction of the updated Guidance Paper, the Austrian FCA claimed in the Guidance Paper that it will routinely find that there is no domestic activity if the turnover of domestic target companies is below EUR 500,000 provided that this turnover adequately reflects the market position and the competitive potential of the target company. With the updated Guidance Paper, the EUR 500,000 threshold is increased to EUR 1 million, thereby bringing the Paper in line with the second domestic turnover threshold (see above). As the transaction value test is only applicable if the primary turnover test is not met, raising the threshold is a (logical) consequence of the recent amendment of the Cartel Act. This amendment might also already have had an impact on the statistics cited at the beginning of this newsletter.
Second, quoting from the recent Salesforce decision by the Cartel Court, the Guidance Paper states that according to Austrian case law, Austrian activities are considered to be significant if the target holds a share of more than 10% in a “competitively relevant segment” (!).While this statement initially appears to clarify the scope of “significant activities”, a closer look demonstrates that it will often be unclear what the “competitively relevant segment” in question is. As it is known from jurisdictions in which a filing obligation is triggered by reaching/exceeding a certain market share threshold, such assessment can be difficult. Detailed market information on the target’s activities is required in order to assess whether a filing obligation can be ruled out or not.
Third, the FCA has added another example to the Guidance Paper where the Cartel Court held that a sufficient local nexus existed: Citing the recent Facebook/GIPHY case, the FCA has added that also the indirect use of a (digital) service can be relevant when determining whether a target company is active in Austria to a significant extent.
The amendments of the Guidance Paper reflect recent judicial and legislative developments in Austria. Through new terms like a “competitively relevant segment”, the Guidance Paper establishes further challenges for a multi-jurisdictional merger notification analysis. The assessment remains difficult and sector-specific. A careful analysis requires also the consideration of market segment shares of the target – which very often is a challenge.