AUSTRIA Law and Practice Contributed by: Gerhard Fussenegger and Florian Neumayr, bpv Huegel
Other fines, mostly based on settlement proce - dures and imposed by the Cartel Court, ranged from EUR20,000 to EUR120,000. Most recently, the FCA filed a request for the impo - sition of a fine of EUR1.15 million against Tönnies Unternehmensbeteiligungen GmbH (Germany) for the unlawful implementation of a merger. Also in 2026, the FCA filed for a EUR380,000 fine with the Cartel Court for the prohibited implementation of SF Holding’s acquisition of the “Odörfer Eisenwaren” business unit – a full-range metalworking trade operation. In both cases, the acquisition was notified to the FCA retro - spectively and approved within Phase I. The acquir - ers both voluntarily reported the infringement and co-operated with the FCA. A special case is currently pending against Kiesel GmbH. The FCA (based on a notification about Kiesel in 2025) applied for fines in three transactions, which were all notified and which all received clearance in Austria, but which all were implemented (much) earlier. Generally, the Supreme Cartel Court has been tak - ing a very strict approach concerning failure to notify. In October 2024, it increased the fine imposed on Palmers Textil Aktiengesellschaft by a factor of 20, from EUR5,000 (as imposed by the Cartel Court as court of first instance) to EUR100,000. The fine was based on Palmer’s establishment of the joint venture Hygiene Austria. Palmers and the other joint venture shareholder, Lenzing AG (which was fined EUR75,000) had breached the standstill obligation by informing the public of the establishment of the company through a press release and by taking operational action before receiving merger clearance. In a groundbreaking decision in February 2025, the Supreme Cartel Court imposed a fine of EUR70 mil - lion on REWE for its failure to notify the takeover of a lease agreement concerning retail space for a food store. Again, the Supreme Cartel Court substantial - ly increased the fine from the initial EUR1.5 million imposed by the Cartel Court. The Supreme Court rejected REWE’s argument that neither the parent company’s turnover nor that generated by separate business fields should be taken into account in the assessment.
Interestingly, shortly after the Supreme Cartel Court’s ruling in REWE, the FCA, after initiating an investiga - tion, concluded that the acquisition of former KIKA/ Leiner sites (a former furniture retailer), which were closed in 2023 by XXXLutz, a leading furniture retailer in Austria, did not constitute a merger. In the FCA’s view, XXXLutz did not violate the prohibition on imple - menting a merger as no operational business relating to the selling of furniture could be attributed to the locations involved in the proceedings/acquisition. The (Supreme) Cartel Court’s decisions are published on different websites. 2.3 Types of Transactions Under Section 7 of the Cartel Act, the following types of transactions are caught by Austrian merger control: • the acquisition of an undertaking or a substantial part of an undertaking; • the acquisition of a right to an operating site of another undertaking through operational lease/ transfer of a business; • the indirect or direct acquisition of 25% or more, or 50% or more, of the shares or voting rights in an undertaking (independent of the acquisition of control); • the establishment of cross-directorships, ie, acts that ensure that at least half of the members of the executive board or the supervisory board in two or more undertakings are the same; • the achievement of any other relationship between undertakings whereby an undertaking may directly or indirectly exercise a decisive influence over another undertaking; and • the creation of a joint venture that performs, on a lasting basis, all the functions of an autonomous economic entity. Some of the above-listed transactions (bullet points two, four and potentially also five) by definition cover operations that do not involve the transfer of shares or assets. A controlling influence without a transfer of shares or assets might be achieved, for example, by: • attaching special rights to preferential shares (eg, the minority shareholders’ right to appoint more than half of the members of the supervisory board);
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