The regulatory regime applicable to mergers in Austria is the Cartel Act 2005 ("ACA"; Kartellgesetz), in particular, part I Chapter 3 of the ACA.

In Austria, the Austrian Federal Competition Authority ("FCA"; Bundeswettbewerbsbehoerde) together with the Federal Cartel Prosecutor ("FCP"; Bundeskartellanwalt), jointly referred to as "Statutory Parties", enforce the Austrian merger control provisions in Phase I. The FCA is assigned to the Federal Ministry for Digital and Economic Affairs. It is an independent administrative body headed by the Director-General and consists of a legal service unit, a litigation unit at the management level and five operative units, which are responsible for different economic sectors. 

Additionally, there is an auxiliary body assigned to the FCA: the "Competition Commission" ("CC", Wettbewerbskommission). The CC's main task is to give detailed advice to the FCA on whether a notified transaction raises competition concerns and whether it, therefore, should be examined by the Cartel Court (for further information on the merger control procedure, see the response to "Please provide an overview of the merger review process. Are there time limits within which the regulatory agency must act? Can they be shortened by the parties or be extended by the regulatory agency?").

Phase II reviews are conducted by the Higher Regional Court of Vienna acting as "Cartel Court" (Kartellgericht), while the Supreme Court acting as "Supreme Cartel Court" (Kartellobergericht) functions as the appellate court.

The Austrian merger control regime is not applicable to transactions that have a "Community dimension" and thus fall within the scope of Council Regulation (EC) 139/2004 on the control of concentrations between undertakings ("EUMR"). If a transaction falls within the scope of the EUMR, only the European Commission will be competent to review the transaction. However, certain transactions may require filings both before the European Commission and in Austria (e.g. a concurrent acquisition of control by undertaking A and an acquisition of a non-controlling minority shareholding of 25% by undertaking B in a target company).

The EUMR stipulates an exemption to the "one-stop-shop" principle for media plurality reviews. The Austrian FCA is responsible for media plurality reviews. As a result, it is possible that a media transaction requires a merger control notification to the European Commission under the EUMR and, at the same time, a separate notification limited to the media plurality review under Austrian law to the Austrian FCA. It should be noted that the ACA has a specific definition of what constitutes a media transaction (see our response to "What kinds of transactions are "caught" by the national rules? (Identify any notable exceptions.)"). The acquirer should therefore always conduct a separate assessment of whether a given transaction constitutes a media merger within the meaning of the relevant Austrian laws.

A merger filing is mandatory if the transaction qualifies as a "concentration" within the meaning of Sec 7 ACA (see the response to "What kinds of transactions are "caught" by the national rules? (Identify any notable exceptions.)") and the merger control thresholds set out in Sec 9 ACA are fulfilled (see the response to "What are the relevant thresholds for notification?"). 

The information the Statutory Parties expect to receive together with the notification is listed in the filing form published by the FCA (in German only: https://www.bwb.gv.at/de/zusammenschluesse/). While the use of the filing form is not a legal requirement, the FCA in practice does expect that the notifying party uses the filing form and provides the information requested in that form (see the response to "What are the form and content of the initial filing?").

According to Sec 7 para 1 ACA, the following types of transactions qualify as a "concentration" under Austrian law:

1. the acquisition of an undertaking, or a substantial part thereof, by an undertaking, in particular by way of merger or transformation; 
2. the acquisition by an undertaking of rights in the business of another undertaking by means of operational lease or management agreements; 
3. the direct or indirect acquisition of shares in an undertaking by another undertaking if as a result the participation held after the acquisition is or exceeds 25%, or is or exceeds 50%; 
4. the establishment of interlocking directorships, which requires that at least half of the members of the management or the supervisory boards of two or more undertakings are identical;
5. the establishment of any other connection of undertakings that enables an undertaking to directly or indirectly exercise decisive influence over another undertaking.

The notion of "decisive influence" is not defined in the ACA. According to the Supreme Cartel Court, it is equivalent to the notion of decisive influence under Art 3 EUMR. 

Pursuant to Sec 7 para 2 ACA, a concentration is also deemed to exist where a joint venture ("JV") is created that performs all functions of an autonomous economic entity on a lasting basis.

According to the Supreme Cartel Court (however, prior to the CJ's decision in Austria Asphalt), the creation of a non-full-function JV triggers an obligation to notify as long as its creation comprises the acquisition of control over an undertaking or substantial parts of an undertaking. 

Furthermore, Sec 8 para 1 ACA deems concentrations in the meaning of Sec 7 ACA as concentrations in the media sector if at least two of the undertakings concerned are undertakings of the following categories: 

1. media undertakings or media services (Sec 1 para 1 clause 6 and 7 Media Act, Federal Law Gazette No 314/1981); 
2. media support undertakings;
3. undertakings that directly or indirectly hold a share of at least 25% in a media undertaking, media service or media support undertaking. 

According to Sec 8 para 3 ACA, a transaction is also deemed to be a concentration in the media sector if only one of the undertakings concerned is an undertaking as defined in para 1 clauses 1 to 3 and one or several media undertakings, media services or media support undertakings directly or indirectly holds at least 25% in at least one other undertaking concerned. 

If a transaction is deemed to be a concentration in the media sector, special provisions are applicable with respect to the calculation of the concerned undertakings' turnovers and the substantive test (see the response to "What are the relevant thresholds for notification?").

According to Sec 19 ACA, special rules apply to the following transactions:

1. a credit institution acquires shares for the sole purpose of reselling them; 
2. a credit institution acquires the shares with a view to restructuring an undertaking in difficulty or securing claims against such undertaking; 
3. the shares are acquired by exercising equity or capital financing business or are otherwise acquired by an undertaking whose only purpose is to acquire shares in other undertakings as well as to manage such shares and resell them.

Yes, minority investments are subject to the Austrian merger control regime as long as they constitute a concentration according to Sec 7 ACA, in particular in the following situations:

1. The minority investment leads to the acquisition of sole or joint control over the target by means of voting rights concerning strategically relevant decisions (e.g. appointment and recall of managing directors or other members of governing bodies; adoption of the annual budget and financial plans, etc.; see also response to "What kinds of transactions are "caught" by the national rules?"). 
2. The minority investment amounts to or exceeds 25% or 50% of the target's shares/voting rights even if the minority investment does not lead to the acquisition of sole or joint control. 

Please note that, in the past, the Cartel Court also ruled that a minority investment of less than 25% of the target's shares or voting rights is subject to the Austrian merger control regime provided that the acquirer holds rights that are normally assigned to holders of 25% of the shares or voting rights (e.g. specific provisions in the articles of association).

Yes. The Austrian merger control regime applies to every transaction that may have an impact on the Austrian market, even if it is a foreign-to-foreign transaction ("effects doctrine"). The position taken by the FCA (as published on the FCA's website, in German only) is that concentrations with a remote "nexus" to the Austrian market are also deemed to fulfill this requirement.

In practice, in cases in which a notification requirement cannot be clearly excluded, informal consultations with the FCA and the FCP are advisable. The FCA and the FCP are typically prepared to discuss the notifiability of transactions informally within a short time frame.

Further information on the FCA's understanding of the local effects test is available on the FCA's webpage (https://www.bwb.gv.at/de/recht_publikationen/standpunkte/inlandsauswirkungen_von_zusammenschluessen/). 

Concentrations must be notified to the FCA, according to Sec 9 para 1 ACA, if the following requirements are fulfilled (based on revenues of the last business year preceding the transaction): 

1. the aggregate turnover of the undertakings concerned was more than EUR 300 million worldwide; and 
2. the aggregate turnover of the undertakings concerned was more than EUR 30 million in Austria if at least two of the undertakings concerned each generated more than EUR 1 million in Austria in the last business year; and
3. at least two of the undertakings concerned had an annual turnover of more than EUR 5 million each worldwide. 

As an exemption, this does not apply if:

1. only one of the undertakings concerned achieved turnover exceeding EUR 5 million in Austria, and
2. the combined aggregate worldwide turnover of the other undertakings concerned does not exceed EUR 30 million.

When applying these rules to concentrations in the media sector (Sec 8 ACA), turnover used for the thresholds in Sec 9 para 1 clause 1 and 2 para 2 clause 2 ACA shall be multiplied by factor 200 in the case of media undertakings and media services and by factor 20 in the case of media support undertakings. Media transactions are therefore subject to stricter notification requirements than transactions in other sectors.

Additionally, based on the value-of-transaction test under Sec 9 para 4 ACA, concentrations that do not reach the aforementioned thresholds require notification to the FCA if:

1. the undertakings concerned had a combined turnover of more than EUR 300 million worldwide in the last business year preceding the transaction,
2. the undertakings concerned had a combined turnover of more than EUR 15 million in Austria in the last business year preceding the transaction,
3. the value of the consideration ("Wert der Gegenleistung") exceeds EUR 200 million, and 
4. the target is active in Austria to a significant extent ("in erheblichem Umfang").

The FCA (together with the German Federal Cartel Office) has published a guidance paper regarding the application of the value of transaction test:(https://www.bwb.gv.at/fileadmin/user_upload/Downloads/standpunkte/2018-07_Guidance_Transaction_Value_Thresholds.pdf).

According to the guidance paper, the value of the transaction under Sec 9 para 4 clause 3 ACA encompasses all assets and other monetary benefits that the seller receives from the buyer in connection with the transaction. The term “asset” should be interpreted widely (covering all cash payments and the transfer of voting rights, securities, and tangible and intangible assets).

With regards to Sec 9 para 4 clauses 4 ACA, the domestic activity has to be measured on the basis of the market-related activities of the target undertaking. The guidance paper states that this requires an appropriate indicator to determine the extent to which the target undertaking is operating on the domestic markets, which, in contrast to Sec 9 para 1 ACA. In some markets, turnover will not be an appropriate indicator of the level of domestic activity. In some markets in the digital sector, for example, user numbers ("monthly active users") or the access frequency of a website ("unique visitors") may be appropriate indicators. 

For the calculation of the turnover thresholds, the turnover of all affiliated entities in the meaning of Sec 7 ACA (see the response to "What kinds of transactions are "caught" by the national rules? (Identify any notable exceptions.)") must be attributed in full. Such affiliated entities must be considered as one single undertaking. This means that even the turnover of a 25% shareholding must be attributed fully. Furthermore, the Austrian merger control regime stipulates that the turnover of jointly controlled undertakings is fully attributed (in contrast to allocation on a per capita basis as set out in the EUMR).

Filing is mandatory if the transaction constitutes a concentration, the aforementioned thresholds are met and the concentration affects the domestic market.

Austrian law does not stipulate a filing deadline. However, the parties to the transaction need to be sufficiently certain and serious about the transaction, i.e. even before a purchase agreement is signed, a filing is possible.

In any event, the transaction must not be closed until clearance has been obtained ("standstill obligation").

According to the ACA, upon receipt of a notification, the FCA has to publicly announce the fact that a notification has been filed. In practice, the FCA will issue a short statement on its website on the day of notification or on the following business day (https://www.bwb.gv.at/en/merger_control/). Third parties whose interests are affected by the transaction may submit a written statement to the FCA and the FCP within 14 days following the publication of the notice on the FCA’s webpage.

The automatic waiting period is four weeks after receipt of the notification (Phase I) and payment of the notification fee. This four-week review period may be extended to six weeks upon the notifying party's request. 

If both Statutory Parties refrain from requesting that the Cartel Court conducts an examination or fail to submit such a request within the aforementioned period of time, the standstill obligation ceases to exist. If the merger raises competition concerns, the Statutory Parties may request that the Cartel Court carries out an in-depth investigation.

The initial filing has to be submitted to the FCA in German in writing, in four identical copies including the required annexes, delivered in person during the FCA's office hours (Mon-Thu 8:00-16:00, Fri 8:00-15:00 as of July 2023). Alternatively, the filing can be submitted electronically via WebERV. There is no mandatory notification form. The filing has to contain exact and exhaustive information on circumstances that might create or strengthen a dominant position or result in a significant impediment to effective competition, particularly information on: 

1. the corporate structure and, in particular for each undertaking concerned, information on 
1. the ownership structure of the undertaking, including affiliated undertakings,
2. the turnover achieved in the business year preceding the transaction, separately specifying certain goods and services,
2. for each undertaking concerned information on the market shares, it holds regarding the goods and services specified in (1.),
3. the general market structure, and
4. in the case of a concentration in the media sector, additionally, exact and exhaustive information on circumstances that might affect media plurality. 

Although not mandatory, the FCA expects the notifying parties to use its notification form provided on the FCA's webpage (in German only: https://www.bwb.gv.at/de/zusammenschluesse/).

For the notification of a merger, a notification fee of EUR 6000 has to be transferred to an account of the FCA designated on its webpage. The statutory four-week period (see the response to "Is there an automatic waiting period? If so, please specify.") only starts after payment of the notification fee and receipt of the notification. Evidence of payment has to be submitted. For Phase II proceedings (see the response to "Please provide an overview of the merger review process. Are there time limits within which the regulatory agency must act? Can they be shortened by the parties or be extended by the regulatory agency?"), A fee of up to EUR 34,000 has to be paid.

Austrian merger procedures consist of two phases:

Phase I is initiated with the payment of the notification fee and receipt of the merger notification. In Phase I, the Official Parties assess whether a merger creates or strengthens a dominant position in the respective market. Phase I is statutorily limited to a four-week period but can be extended by two additional weeks upon request of the notifying party. In Phase I one of the Official Parties may request the Cartel Court to examine the merger in terms of competition concerns. If both Official Parties refrain from requesting that the Cartel Court conduct an examination or fail to submit such a request within the aforementioned time period, the merger is deemed to have been cleared. Early clearance prior to the expiry of the 4-week review period requires a waiver by both Statutory Parties of the right to request an in-depth review by the Austrian Cartel Court. Such a waiver will typically only be granted in special circumstances and typically requires inter alia that the transaction, on its face, does not raise competition concerns and a reasoning why early clearance is needed (e.g. risk of insolvency of the target).

Phase II is initiated by a request of at least one Official party the Cartel Court for an in-depth examination of the transaction. The Cartel Court may prohibit the transaction only within five months (extendable to six months upon request of the notifying party) after receipt of such a request or, where both Official Parties request examination, the first of both requests. The Cartel Court has to either reject the request in case the transaction is not subject to a notification requirement, prohibit the transaction or declare that the transaction is not prohibited (see the response to "What is the substantive test for clearance?"). The prohibition of a transaction can be declared only within five months upon receipt of a request for examination.

Appeal proceedings before the Supreme Cartel Court can be initiated within four weeks from receipt of the Cartel Court's decision.

The Cartel Court has to prohibit a concentration if it leads to the creation or strengthening of a dominant position or to a significant impediment to effective competition. The ACA provides a rebuttable presumption that an undertaking is dominant based on the following market share thresholds. Market shares of

1. at least 30%, or 
2. more than 5% if the undertaking concerned is exposed to competition by not more than two undertakings, or 
3. more than 5% if the undertaking concerned is one of the four biggest undertakings on the market in question, which together have a combined market share of at least 80%.

Through the government bill of the Cartel and Competition Law Amendment Act 2021 ("KaWeRÄG"), the FCA introduced the SIEC test (significant impediment of effective competition) as an addition to the substantive test. Furthermore, the ACA provides a rebuttable presumption of collective dominance based on market shares:

1. combined market share of at least 50% of a group of three or fewer undertakings, or
2. combined market share of at least two-thirds of the market of a group of five or fewer undertakings.

Even if a concentration leads to the creation or strengthening of a dominant position or to a significant impediment to effective competition, the Cartel Court may refrain from prohibiting the transaction if:

1. it should be expected that the transaction will lead to efficiencies (improvements of the competitive condition) that outweigh the negative effects of the transaction, or
2. the transaction is necessary to maintain or improve the international competitiveness of the undertakings concerned whilst being economically justified, or
3. the economic advantages of the transaction significantly outweigh the disadvantages of the transaction.

The Cartel Court may (i) reject the request for examination if the transaction is not notifiable, (ii) prohibit the transaction due to its incompatibility with the market or (iii) clear the transaction conditionally or unconditionally.

At any point in the process, the Statutory Parties may withdraw their application for an in-depth investigation.

The parties may propose commitments to the Statutory Parties and/or the Cartel Court at any time during the merger proceedings. Austrian law does not stipulate formal deadlines for proposing commitments.

If a transaction raises competition concerns and will require remedies, commitments should be discussed early on with the Official Parties in Phase I or even earlier (“up-front”) in pre-notification discussions.

The sanctions for the implementation of a merger before clearance are the imposition of a fine of up to 10% of the acquirer group’s turnover during the last completed business year (see the response to "Describe the penalties applicable to the implementation of a merger before clearance or of a prohibited merger."), the invalidity of the implementation contracts and, subject to the principle of proportionality, the imposition of further measures up to the unbundling of the transaction. The fine for (intentionally or negligently) submitting incorrect or misleading information in the notification or during the process amounts to up to 1% of the group turnover during the last completed business year.

See previous section.

Cooperations that do not raise a merger control notification requirement may still come under scrutiny based on Art. 101 TFEU / Sec. 1 ACA.

The FCA may conduct all investigations necessary to perform its duties as laid down in the ACA, such as in particular requests for information and for the submission of documents. Therefore, the FCA will take all investigative measures necessary to identify any breach of the standstill obligation if there are reasonable grounds for suspicion. If the FCA comes to the conclusion that the standstill obligation was violated, it will ask the Cartel Court to impose a fine that, as mentioned above, amounts to up to 10% of the total turnover achieved by the undertakings concerned in the preceding business year.

The FCA currently focuses on a range of industries, from the construction industry to food, digital and media. Practitioners should note the FCA’s enforcement record regarding failure to notify and gun-jumping. The FCA especially observes transactions that could fall under the new thresholds in Sec. 9(4) ACA. The FCA is also likely to act on complaints from market participants regarding specific transactions.

As already indicated above and in contrast to other jurisdictions, the FCA is not competent to prohibit transactions. This power rests with the Cartel Court.