AUSTRIA Law and Practice Contributed by: Gerhard Fussenegger and Florian Neumayr, bpv Huegel
3.10 Accelerated Procedure A short-form notification is available if there are no affected markets; for example, if after implementa - tion of the transaction the combined horizontal market shares do not reach 15%, if one of the undertakings concerned does not have a market share of 25% or more in vertically overlapping markets, or if a pre - sumption of dominance pursuant to the Cartel Act is not fulfilled (eg, none of the undertakings has a market share of at least 30%). Clearance in Phase I may be expedited by obtain - ing waivers from both the FCA and the FCP of their right to initiate Phase II proceedings. Waivers are not issued automatically, but only upon request by the notifying party. The authorities have wide discretion as to whether to grant a waiver and they will typically only do so if the case does not give rise to competi - tion concerns. The notifying party must demonstrate that there is an urgent need for the transaction to be cleared early; for example, threat of insolvency is usually accepted as a reason for urgency. Austrian merger control uses the dominance test: a transaction will be prohibited if it creates or strength - ens a dominant position. A transaction will also be prohibited if it results in “significant impediment of effective competition” (the “SIEC-test”). The Austrian legislator hereby incorporated two equal substantive tests in the Cartel Act. Nevertheless, even if these substantive tests are trig - gered, the Cartel Court must clear the transaction if the transaction gives rise to improvements in the competitive conditions that outweigh any detrimental effects, or if the transaction is indispensable to the international competitiveness of the parties and justifi - able in the interest of the national economy. Addition - ally, the notified transaction has to be cleared if the national economic advantages significantly outweigh the disadvantages of the merger. 4. Substance of the Review 4.1 Substantive Test
Concerning the dominance test, an undertaking will be presumed to hold a dominant position if its market share is 30% or more. There are similarly low thresh - olds for the existence of collective dominance. While the Austrian authorities are required to inves - tigate the case ex officio and may not simply pro - hibit a case based on the statutory thresholds, these presumptions do have an impact on which cases are referred to Phase II. 4.2 Markets Affected by a Transaction The Austrian authorities will look at the market in which the target is active. Of special interest are mar - kets in which both parties to the transaction are active (horizontal overlaps). Markets that are vertically linked (where, for example, one party is a supplier and the other party is a customer, irrespective of an actual supply relationship between the parties) also have to be identified in the recommended notification form. There is no de minimis rule, but competitive concerns are unlikely where the use of the short-form notifica - tion is possible; that is, where there is no affected market (as outlined in 3.10 Accelerated Procedure ). 4.3 Reliance on Case Law The Austrian authorities also refer to the decisional practice of other competition authorities, in particular with regard to market definition. The most important points of reference are the European Commission and the German FCO. 4.4 Competition Concerns The dominance test and the additional SIEC-test apply to all types of mergers; eg, horizontal, vertical and conglomerate transactions. In investigating these transactions, the authorities may rely on both unilater - al and co-ordinated effects. In practice, the focus has mostly been on horizontal cases that have given rise to high market shares, and on vertical and conglomer - ate foreclosure issues. Recent decisions also reveal an increasing emphasis on closeness of competition. 4.5 Economic Efficiencies To date, efficiencies have not featured prominently in Austrian practice. However, the Cartel Act explicitly provides for efficiencies to be taken into account.
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