AUSTRIA Law and Practice Contributed by: Gerhard Fussenegger and Florian Neumayr, bpv Huegel
3.5 Information Included in a Filing Based on the standard form published by the FCA, the following core information is requested for purposes of Austrian merger control: • accurate and exhaustive information on the cir - cumstances that may create or may strengthen a dominant position or otherwise significantly impede effective competition; • a description of the notification – eg, whether the transaction is a transfer of shares or assets, or whether it is an acquisition of sole or joint control; • information on the undertakings concerned; • information on the ownership structure and the shareholdings, as well as the turnover figures (worldwide, EU and Austria); and • information on the relevant market – eg, the rel - evant product/service market(s) where the target is active and/or all markets where there is a horizontal or vertical relationship; data for the previous busi - ness year must be provided with regard to the total size of the relevant market, as well as the market shares of the parties concerned and the main competitors. Additional Information If there is an “affected market” (see 3.10 Accelerated Procedure ), more detailed information is requested, including the following: • a list of all the shareholdings acquired by the undertakings concerned in the affected markets; • a description of prior business relationships between the undertakings concerned; • market data for the last three years (compared to only the last business year in a short-form notifica - tion); or • information concerning the relevant supply mar - kets. If a presumption of dominance pursuant to Section 4 (2) or (2a) of the Cartel Act is fulfilled (especially, a market share of at least 30%), information on possible countervailing factors, such as buyer power, market entries, efficiencies, and the existence of a restructur - ing merger, must be provided.
Documents submitted should include the organisation charts of the undertakings concerned, annual reports, and the basis and sources (eg, economic statistics) for the calculation of the market data provided (listed above). Transaction documents are not required (but may be requested). If the transaction results in an affected market, business plans may also be required. The Cartel Court has ruled that the filing and attach - ments must be submitted in German. In practice, Eng - lish attachments are often accepted (eg, with regard to annual reports). 3.6 Penalties/Consequences of Incomplete or Inaccurate Notification The FCA and the FCP do not have the power to declare a notification incomplete. Only in an applica - tion to the Cartel Court for a Phase II proceeding can they request an order that the notification be com - pleted. If the parties concerned do not adhere to such an order (which must be issued within one month of the official parties’ respective request), the notification will be rejected by the Cartel Court. In March 2022, the Cartel Court rejected the notification in ARAplus / Sau- bermacher / digi - Cycle as the parties did not answer the Cartel Court’s order to complete the notification in time. In this case and generally in practice, the official par - ties try to obtain missing information during Phase I. In complex cases, it might be useful to initiate pre- notification talks with the official parties (see 3.8 Pre- notification Discussions With Authorities ) to gather feedback concerning the completeness of a notifica - tion upfront. Under the Cartel Act, no fines can be imposed for the submission of an incomplete notification as long as the incompleteness does not result in inaccurate or misleading information being provided to the authori - ties. If the non-prohibition of the concentration or the waiver of a request for a Phase II proceeding is based on incorrect or incomplete information from the par - ties, the Cartel Court may impose both a fine and/ or ex-post measures on the undertakings concerned. If the notifying party supplied inaccurate (or mislead - ing) information in the filing, the Cartel Court, upon
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