Austrian Merger Control - Update September 2021
New additional merger control filing threshold for domestic turnover – summary of changes
Big things are happening in the Austrian world of merger control law!
Good news for all transactions with little or no nexus to Austria: The latest amendment of the Austrian Cartel Act – which just entered into force on 10 September 2021 – introduces a second national turnover threshold.
The combined national turnover threshold of more than EUR 30 million achieved in Austria now requires as addendum at least two undertakings concerned to have a turnover of more than EUR 1 million each in Austria.
Important to know, the transaction value threshold remains unaffected by the amendment. For the transaction value threshold to be met it remains sufficient that the combined turnover threshold of EUR 15 million turnover achieved in Austria is met by only one undertaking concerned (if the other conditions are fulfilled as well).
The Austrian Federal Competition Authority (FCA) expects the number of filings to drop down by over 40%.
Also, noteworthy in this context is that the filing fee for phase I proceedings is raised from EUR 3,500 up to EUR 6,000. Another eagerly awaited amendment is the anchoring of the “significant impediment of effective competition (SIEC)”-test as an additional review standard for mergers in the Cartel Act.
According to the transitional provision in the Cartel Act, the new regime (as set out above) shall only apply for merger filings submitted after 31 December 2021. But what does this actually mean in regard to the new threshold? In the FCA’s view as recently published on its website, transactions which are closed in 2021 will still have to be assessed under the old regime, but transactions closed after 31 December 2021 will be assessed under the amended rules, i.e. inter alia taking into account the new national turnover threshold.
Old habits die hard – but they die for good, in a few months. So watch out!
One short addendum in order to not make things too easy: if there are more than two relevant undertakings concerned whose turnover has to be considered (e.g. in case of a joint venture the (two) parent companies and the target), then the good old no-effects doctrine might still apply if, inter alia, the target has no turnover in Austria. This of course has to be carefully analyzed on a case-by-case basis.
Overview of amended general turnover thresholds as of 31 December 2021 (amendments in red):
A filing obligation exists if all of the following thresholds have been met by the undertakings concerned in the financial year preceding the concentration: 1
However, even if the above thresholds are met, there is no obligation to notify if the undertakings concerned come within the scope of the following exemption:
Transaction value threshold (unchanged):
Even in cases where the above thresholds are not met, a concentration has to be notified if all of the following conditions are met in the financial year preceding the concentration:
1Special provisions apply as regards credit institutions as well as media (support) companies.
Please note: This blog merely provides general information and does not constitute legal advice of any kind from Binder Grösswang Rechtsanwälte GmbH. The blog cannot replace individual legal consultation. Binder Grösswang Rechtsanwälte GmbH assumes no liability whatsoever for the content and correctness of the blog.