Merger Control in Austria – White Paper 6/2016
Please find below an executive summary of our white paper „Merger Control in Austria“ by Dieter Thalhammer, partner and head of our practice group „Competition Law“, and Judith Feldner, junior partner and member of our practice group „Competition Law“. For more information please download your copy of our free white paper.
Merger Control in Austria – Aspects to be Aware of
Austrian merger filing requirements deviate in some substantial aspects from the rules applicable under the European Merger Control Regulation and in other EU Member States. The most important peculiarities are briefly summarized in the following.
Deal or no Deal?
The EU merger control regime defines mergers, the acquisition of control and the creation of a full-function joint venture as concentrations. Under the Austrian merger control regime a transaction additionally qualifies as a concentration in particular if as a result of the transaction a shareholding (in terms of voting rights or capital) of 25 or 50 per cent is reached or exceeded even if no controlling rights are connected with the shareholding.
Meeting the Thresholds
A concentration can also be notifiable with the Austrian Federal Competition Authority if the target company or the acquirer achieves (almost) no turnover in Austria: Under the Austrian merger control regime a concentration has to be notified if – in the last completed business year – the combined worldwide turnover of the undertakings concerned exceeded EUR 300 million, the combined Austrian turnover of the undertakings concerned exceeded EUR 30 million and the worldwide turnover of at least two of the undertakings concerned exceeded EUR 5 million each. However, no notification obligation exists if the Austrian turnover of only one undertaking concerned exceeded EUR 5 million and the combined worldwide turnover of all other undertakings concerned did not exceed EUR 30 million (de minimis exemption).
It follows that also concentrations involving a target company generating no turnover in Austria can still trigger a filing obligation in Austria (e.g. the acquiring company generated worldwide more than EUR 270 million and more than EUR 30 million in Austria and the target company generated more than EUR 30 million worldwide). If the Austrian thresholds are met, only in very exceptional cases it is possible to successfully apply the the „effects doctrine“ according to which no filing obligation exists if a concentration has no appreciable effect on the Austrian market at all.
Attention to Minority Interests
Another important Austrian peculiarity is to be taken into consideration whenever calculating the relevant group turnover in the course of the assessment of a possible filing obligation in Austria. Please note that the relevant group of companies to which the undertakings concerned belong to does not only comprise companies controlling the undertakings concerned or being controlled by these undertakings. In particular, you also need to take into account all companies which have a (direct or indirect) minority shareholding of at least 25% in the undertakings concerned or in which the undertakings concerned have a (direct or indirect) shareholding of at least 25%. Consequently, proper definition of the group of companies entails a careful, case-by-case assessment.
Sanctions in Case of violating the Standstill Obligation
Due to these Austrian peculiarities it happens quite frequently that a notification duty is assessed incorrectly. Companies which implement a notifiable concentration before receiving clearance are subject to fines. Upon request of one of the Statutory Parties (Federal Competition Authority or Federal Cartel Prosecutor) the Cartel Court may impose a fine of up to 10% of the total worldwide turnover generated in the last business year. Moreover, agreements infringing the standstill obligation are null and void under civil law, unless the concentration is subsequently cleared. Against this background, a filing obligation in Austria should be examined quite thoroughly even if the transaction has at first sight no immediate impact on the Austrian market.