Contributed By CHSH Cerha Hempel Spiegelfeld Hlawati
In accordance with the Foreign Trade Act 2011, Section 25a, Austrian companies operating in areas of internal and external security (the defence industry, security services, etc) or general public services, including social security (particularly healthcare, energy or water supply, telecommunication services, traffic or education) are protected against acquisitions by foreigners by the statutory requirement of an approval of the Austrian Ministry for Economic Affairs.
Generally, the requirement of ministerial approval applies to acquisitions of domestic listed and non-listed companies by foreign investors that are not residents or citizens of the EU, the EEA or Switzerland. In particular, the Foreign Trade Act 2011 involves three scenarios:
For the purpose of calculating the threshold triggering the approval requirement, shares of buyers acting in concert as well as persons having agreed to jointly exercise their voting rights have to be aggregated.
The request for approval has to be filed prior to signing of the respective acquisition documents. Within one month (in case of a more detailed assessment, within another two months) the Ministry for Economic Affairs decides on the request for approval, which is deemed cleared if no decree is issued within the aforementioned period. Where there is deemed to be a 'serious threat' to the interests of public security and order, the approval may be subject to conditions (which are not specified in further detail). Prior to the approval, an acquisition subject to the Foreign Trade Act 2011 must not be implemented.