Last Updated April 16, 2019

Law and Practice

Authors



CHSH Cerha Hempel Spiegelfeld Hlawati has 25 partners and 76 senior attorneys and associates in Austria; the firm also has offices in Belarus, Bulgaria, the Czech Republic, Hungary, Romania, and the Slovak Republic. The Corporate team is active for clients in the private M&A markets of Austria and CEE, representing strategic and private equity investors as well as their targets and/or management. It also advises on national and international cross-border mergers and reorganisations, specialising in developing and providing practical solutions to what can be extremely complex issues that often involve cross-border components. Due to the diversity of its clients, the team is particularly experienced in advising on public M&A, including takeover law and related disclosure requirements under stock exchange law.

The relevant pieces of merger legislation are the Austrian Cartel Act 2005 (Kartellgesetz 2005) and the EU Merger Control Regulation (Regulation (EC) No 139/2004). Depending on turnover thresholds, transactions of a certain size become subject to the requirement of merger control clearance by either the Federal Competition Authority or the European Commission. The European Commission has exclusive jurisdiction if the transaction results in concentrations with an EU dimension. Where a transaction does not fall within the exclusive jurisdiction of the European Commission, it may require (pre-merger) notification to and clearance by the Federal Competition Authority.

The Austrian merger control regime catches several corporate transactions, such as the direct or indirect acquisition of shares, if a shareholding of 25% or 50% is attained or exceeded, any other combination (even below this threshold) enabling the buyer to exercise a controlling influence on the target or joint ventures. These concentrations have to be notified to the Federal Competition Authority if the following turnover thresholds are fulfilled cumulatively in the last business year immediately preceding the transaction in question:

  • the aggregate worldwide turnover of the undertakings concerned (eg, in case of 'mere' acquisitions: buyer and target groups) exceeds EUR300 million; and
  • the aggregate turnover on the Austrian market of the undertakings concerned exceeded EUR30 million; and
  • the worldwide turnover of each of at least two undertakings concerned exceed EUR5 million.

However, concentrations exceeding these turnover thresholds are exempt from mandatory notification if only one undertaking achieved a turnover in Austria of more than EUR5 million and the other undertaking(s) achieved an aggregate turnover of not more than EUR30 million worldwide.

Furthermore, an additional threshold has applied under Austrian merger control law since 1 November 2017. This additional threshold is linked not only to the turnover of the undertakings involved, but also to the transaction value. Specifically, concentrations meeting the following thresholds must in future be notified to the Federal Competition Authority:

  • a combined worldwide turnover of more than EUR300 million;
  • a combined turnover in Austria of more than EUR15 million;
  • where the value of the consideration exceeds EUR200 million; and
  • if the target company has significant business operations in Austria.

Within one month of receiving the complete notification, the Federal Competition Authority and the Federal Cartel Prosecutor conduct an initial assessment (Phase I) and, most commonly, following the transaction is cleared at the end of that period. In more critical cases, the Federal Competition Authority or the Federal Cartel Prosecutor initiates the main examination proceedings (Phase II). Here, the Cartel Court has five months to finalise the investigations, consider whether the transaction creates or strengthens a dominant market position and finally either clears the transaction (which may be subject to conditions and/or obligations) or prohibits it (which is quite rare in practice).

CHSH Cerha Hempel Spiegelfeld Hlawati

Cerha Hempel Spiegelfeld Hlawati
Rechtsanwälte GmbH
Parkring 2
A-1010 Vienna

+43 1 514 35 0

+43 1 514 35 35

office@chsh.com www.chsh.com
Author Business Card

Authors



CHSH Cerha Hempel Spiegelfeld Hlawati has 25 partners and 76 senior attorneys and associates in Austria; the firm also has offices in Belarus, Bulgaria, the Czech Republic, Hungary, Romania, and the Slovak Republic. The Corporate team is active for clients in the private M&A markets of Austria and CEE, representing strategic and private equity investors as well as their targets and/or management. It also advises on national and international cross-border mergers and reorganisations, specialising in developing and providing practical solutions to what can be extremely complex issues that often involve cross-border components. Due to the diversity of its clients, the team is particularly experienced in advising on public M&A, including takeover law and related disclosure requirements under stock exchange law.

{{searchBoxHeader}}

Select Topic(s)

loading ...
{{topic.title}}

Please select at least one chapter and one topic to use the compare functionality.