Important information regarding time periods in merger control proceedings in Austria

The 2nd Covid 19 Act, which is scheduled to come into force next Monday, 23 March 2020, also includes far-reaching changes regarding future merger filings to the Austrian Federal Competition Authority (FCA) and merger proceedings currently pending before the Austrian Cartel Court:

The 4-week (or maximum 6-week) period for the submission of a request for examination by the FCA or the Federal Cartel Prosecutor for merger filings received by the FCA before 30 April 2020 will not begin to run until 1 May 2020. Regarding examination proceedings that are already pending before the Austrian Cartel Court when the new Act enters into force or that are initiated by 30 April, the 5-month (or maximum 6-month) decision period does not begin to run until 1 May 2020.

According to the current state of information, these new rules should not apply to merger filings that have already been filed and are currently in Phase I, i.e. for which no request for examination has yet been filed to the Austrian Cartel Court.

The main purpose of these new provisions is to ensure that the authorities will continue to function even if large parts of their staff become ill.

As of today (20 March 2020, 3 p.m.), the FCA will publish a guideline containing more detailed information next Monday, the day on which the new regulations come into force. We will keep you up to date regarding the content of such guideline.

However, waivers of examinations by the FCA or the Federal Cartel Prosecutor will still be possible and therefore could lead to the new statutory period not being fully utilised. In any event, as before, the third party rights to submit comments have to be preserved. For that reason, a waiver of an examination can be made at the earliest approximately 17 days after submission of the filing.

What could change, however, is that the authorities will be more generous with requests for waiver of examination than under the old legal framework. According to the old framework, applications for early waivers of examination required a comprehensive justification of urgency in order to have a chance to succeed. However, a generous handling of requests for waivers will of course depend on the specific case and the respective circumstances, in particular the workload of the authorities, as each transaction must still be subjected to a thorough examination. It follows that there will be quite a large uncertainty factor for the companies concerned. However, based on our experience with the authorities, we are confident that they will do everything in their power to enable companies to complete their transactions as quickly as possible.

It should also be mentioned that filings can now only be filed electronically to the FCA. This change has taken place in recent days in order to meet the Austrian Government’s demands to reduce personal contacts as much as possible.

We will of course keep you up to date - stay healthy and, if possible, at home!

Please note: This newsletter merely provides general information and does not constitute legal advice of any kind from Binder Grösswang Rechtsanwälte GmbH. The newsletter cannot replace individual legal consultation. Binder Grösswang Rechtsanwälte GmbH assumes no liability whatsoever for the content and correctness of the newsletter.