AUSTRIA Law and Practice Contributed by: Gerhard Fussenegger and Florian Neumayr, bpv Huegel
2.12 Requirement for Clearance Before Implementation Completion of a transaction must be suspended until clearance. As discussed in 2.2 Failure to Notify , closing a trans - action before clearance is subject to penalties of up to 10% of the consolidated turnover of the parties. The Supreme Cartel Court ruled that a transaction is deemed “implemented” once the acquirer obtains the “opportunity to exercise economic influence”, regardless of whether, or when, it actually exercises that influence. 2.13 Penalties for the Implementation of a Transaction Before Clearance As outlined in 2.2 Failure to Notify , the FCA has focused in recent years on failure to notify and imple - mentation prior to receiving clearance. 2.14 Exceptions to Suspensive Effect Austrian merger control, in contrast to EU law (see Article 7 (2) EUMR), does not provide any exceptions to the suspensive effect. In general, no such exception applies to failing firms, either. Under Section 19 of the Cartel Act, notification is not required for certain types of transactions that are not considered to be an “acquisition” under the meaning of Section 7 of the Cartel Act, such as: • credit institutions may acquire shares (but not assets) in undertakings, if the shares are acquired only for the purpose of resale; • certain private equity undertakings may acquire shares (but not assets), if the accompanying voting rights are exercised only to maintain the full value of those investments and not to determine, directly or indirectly, the competitive conduct of those undertakings; and • while the first two exceptions are in line with EU law, the Cartel Act goes further by additionally exempting acquisitions by credit institutions which are made to restructure a financially suffering target or to secure claims towards the target.
As discussed in 2.12 Requirement for Clearance Before Implementation , the Supreme Cartel Court ruled that acceptance of a takeover bid is consid - ered to be an implementation of a transaction (which requires immediate clearance). 2.15 Circumstances Where Implementation Before Clearance Is Permitted The Austrian authorities do not have the statutory authority to grant derogations from the ban on clos - ing a transaction prior to clearance. In special cases, it is possible to implement transac - tions outside of Austria while the transaction in Austria (eg, concerning an Austrian subsidiary) is suspend - ed pending clearance (ie, so-called “hold separate” agreements). However, it might be difficult to apply carve-outs of an Austrian branch of a business in practice, as the target’s Austrian operations are not typically considered sufficiently autonomous as a standalone business to be carved out. 3. Procedure: Notification to Clearance 3.1 Deadlines for Notification There are no deadlines for notification in Austria. How - ever, completion before clearance is not allowed. 3.2 Type of Agreement Required Prior to Notification A written binding agreement or letter of intent is not necessary for notification. 3.3 Filing Fees The filing fee in Austria is a fixed rate of EUR6,000, regardless of the size of the transaction (or the turno - ver of the parties to the concentration). The filing fee must be irrevocably transferred to the FCA account before the filing is transmitted. 3.4 Parties Responsible for Filing According to the Cartel Act, “the parties to the con - centration” are entitled to file. Based on precedents, “parties to the concentration” covers the acquirer and the target company, but not the seller.
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