AUSTRIA Law and Practice Contributed by: Gerhard Fussenegger and Florian Neumayr, bpv Huegel
2.7 Businesses/Corporate Entities Relevant for the Calculation of Jurisdictional Thresholds The relevant turnover is the turnover of the buyer and the target. However, if the seller keeps 25% or more of the shares (and/or direct control) in the target, the seller’s turnover must also be included in the target’s turnover. Austrian law provides for a somewhat extraordinary definition of what constitutes the relevant “group”, which deviates from the rules of the EUMR. Under Austrian law, the turnover of all undertakings linked to the parties concerned by direct or indirect control, or by an upstream or downstream shareholding of at least 25%, must be included in full (ie, not on a pro rata basis). Changes in the business (such as acquisitions or divestments) after closing of the preceding financial year but before implementation of the planned trans - action must be reflected in the analysis of whether the relevant thresholds are met. 2.8 Foreign-to-Foreign Transactions Foreign-to-foreign transactions are subject to merger control in Austria; a local presence is not required. If the thresholds are triggered, a filing is required unless the “effects doctrine” applies. Besides the precondition that the target does not achieve any turnover in Austria, it must be shown that the planned transaction will have no effect on the Austrian market. Effects resulting in an obligation to file could exist, for example, on the basis that the target will be active in Austria in the near future, or that the target, though not active in Austria, is active in a broader geographic market that encompasses Austria (eg, an EU-wide market). With the introduction of the second national threshold (see 2.5 Jurisdictional Thresholds ), the “effects doc - trine” can only apply if the target (without any turnover in Austria) will have, post-transaction, two parental undertakings, which both hold at least 25% in the target and which both trigger the national thresholds (ie, combined Austrian turnover of EUR30 million and EUR1 million each).
2.9 Market Share Jurisdictional Threshold There is no market share threshold in Austrian merger control. 2.10 Joint Ventures Under Section 7 (2) of the Cartel Act, Austrian merger control follows Article 3 (4) of the EUMR, according to which “the creation of a joint venture performing on a lasting basis all the functions of an autonomous eco - nomic entity shall constitute a concentration”. Howev - er, contrary to the EUMR (which, as clarified in Austria Asphalt GmbH & Co OG v Bundeskartellanwalt , only treats full-function joint ventures as concentrations, whether newly created or converted from an exist - ing undertaking), the creation of a non full-function joint venture might also trigger an obligation to file in Austria. This is the case if one of the parent compa - nies transfers a “substantial part of an undertaking” into the joint venture. A “substantial part” may include production facilities, customer lists, patents, etc. In specifying the term “substantial part”, the Supreme Cartel Court refers to whether a (potential) market position is, or will be, transferred with the transaction (Case No 16 Ok 8/01). 2.11 Power of Authorities to Investigate a Transaction If the thresholds of Austrian merger control are not met, the Austrian competition authorities cannot call in a transaction under merger control standards. However, they can investigate a transaction based on antitrust criteria according to both Article 101 of the TFEU and Section 1 of the Cartel Act. There is also the possibility (though very rare in practice) that a merger which does not meet the turnover thresholds may still qualify as an abuse of dominance under Section 5 of the Cartel Act. Furthermore, in its Towercast judgment of 16 March 2023, the European Court of Justice (ECJ) ruled that national competition authorities (NCAs) and courts can review acquisitions by dominant entities under Article 102 of the TFEU, if those acquisitions are not notifiable under EU or national merger control laws. As the legal consequence of not notifying a notifiable transaction is nullification of the underlying agree - ments, there is no statute of limitations on the authori- ties’ ability to investigate a transaction.
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