AUSTRIA Law and Practice Contributed by: Gerhard Fussenegger and Florian Neumayr, bpv Huegel
• a de facto controlling influence by minority share - holders who are highly likely to achieve a majority at the shareholders’ meetings due to the percent - age of shareholders in attendance; or • minority shareholders acting together in exercising their voting rights. Intra-group restructurings or reorganisations are not covered by Austrian merger control. 2.4 Definition of “Control” “Control” is not defined in the Cartel Act. The Austrian Supreme Cartel Court (Case No 16 Ok 7/07) has confirmed that a controlling influence under the Cartel Act, Section 7 is identical to exercising “decisive influence” within the meaning of Article 3 of Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (EU Merg - er Regulation or EUMR). In the same decision, the Supreme Cartel Court also defined “sole” and “joint” control as follows. Joint Control Joint control exists where the controlling shareholders all have the “possibility to influence strategic deci - sions”, eg, where such decisions cannot be taken without the participation of other shareholders. In defining the term “strategic decisions”, the Supreme Cartel Court referred to the Commission’s Consoli - dated Jurisdictional Notice No 139/2004 and listed “the budget, the business plan, major investments or the appointment of senior management” as rights that typically confer joint control. Sole Control Sole control is achieved if the acquirer is able to influ - ence the strategic competitive behaviour of the target independently. The Supreme Cartel Court again fol - lows the Commission’s Jurisdictional Notice (includ - ing for cases of negative sole control). Acquisition of Shares As discussed in 2.3 Types of Transactions , the direct or indirect acquisition of 25% or more (or 50% or more) of the shares or voting rights of an undertak - ing is caught by Austrian merger control, independ - ent of whether control is acquired. In addition, under
Austrian case law, the acquisition of even less than 25% of the shares or voting rights in an undertaking is caught by Austrian merger control if the acquirer gets rights that are comparable to minority rights typically attributed to a 25% or more shareholder. 2.5 Jurisdictional Thresholds According to the “classic threshold” of Section 9 (1) of the Cartel Act, the thresholds of Austrian merger con - trol are met if the undertakings concerned achieved the following turnover figures in the previous business year: • a combined global turnover of more than EUR300 million; • a combined turnover of more than EUR30 million in Austria, with at least two companies each achiev - ing more than EUR1 million; and • at least two of the relevant undertakings each had a global turnover of more than EUR5 million. Furthermore, if only one of the undertakings concerned had a turnover of more than EUR5 million in Austria, the global turnover of the other undertaking involved must exceed EUR30 million in order to require merger notification (Section 9 (2) of the Cartel Act). According to the supplementary “transaction-value- based” notification threshold (Section 9 (4) of the Cartel Act), a concentration has to be notified to the official parties if: • the combined worldwide turnover of the undertak - ings concerned exceeds EUR300 million; • the combined Austrian turnover of the undertak - ings exceeds EUR15 million; • the value of the consideration for the transaction exceeds EUR200 million; and • the target is active in Austria to a significant extent. For mergers that occur in the media sector, a special turnover calculation has to be applied. Depending on the status of the undertakings concerned (differentia - tion is made between media undertakings, media ser - vices and media supporting undertakings, eg, news - paper, press agency, publisher, advertising agencies), the respective turnover must be multiplied by a factor of 200 or 20.
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