AUSTRIA Law and Practice Contributed by: Gerhard Fussenegger and Florian Neumayr, bpv Huegel
4.6 Non-Competition Issues The Austrian Cartel Act provides for a non-competi - tiveness defence if the national economic advantages significantly outweigh the disadvantages of the merg - er. So far, in spite of this explicit statutory provision, non-competition considerations, such as industrial or employment policy, have not played a substantive role in Austrian merger control proceedings. In the case of media mergers, Austrian merger con - trol also seeks to protect media diversity. The media transaction MFE MEDIAFOREUROPE N.V. (MFE); ProSiebenSat.1 Media SE was filed in Austria. Its legal standard of review was strictly limited to examining the effects of the transaction on media plurality (while, in terms of potential competition concerns, the trans - action was examined by the EC under the EU merger control regime). In light of media diversity concerns regarding (i) possible reduced local news and content, and (ii) MFE’s stronger focus on the global group, MFE and the official parties agreed on wide-ranging rem - edies. For example, MFE guaranteed the independ - ence of the management and editorial board of the P7S1 Austria Group. Concerning the acquisition of a minority shareholding in NÖP (a publisher of regional newspapers in Lower Austria) by Raiffeisen Holding-NÖ-W, it was agreed during Phase I to separate marketing activities for print and online advertising, and to guarantee NÖP’s editorial independence. 4.7 Special Consideration for Joint Ventures In Austria, contrary to the EUMR, the creation of a non full-function joint venture may qualify as a notifiable transaction if one or both parents transfer assets into the joint venture such that the formation of the joint venture qualifies as an “acquisition of an undertaking or a substantial part of an undertaking” (which is a reportable transaction under Austrian merger control rules, see 2.3 Types of Transactions ). In substance, like all other reportable transactions, joint ventures are subject to the dominance test and the additional SIEC-test. In addition to the concentra - tive effects of the merger, any co-ordination between the parent companies that is directly related and nec -
essary to the implementation of the merger is to be assessed in the course of the merger proceedings.
5. Decision: Prohibitions and Remedies 5.1 Authorities’ Ability to Prohibit or Interfere With Transactions In Phase I, the official parties cannot prohibit a trans - action. In Phase II, only the Cartel Court may prohibit a transaction if it creates or strengthens a dominant position or if it results in a significant impediment of effective competition (see 4.1 Substantive Test ). How - ever, prohibition decisions in Austria are very rare. In practice, withdrawals are more common (most recent - ly, Sprengnetter withdrew the merger notification con - cerning its planned acquisition of IMMOunited and lexunited). The undertakings concerned are active in the field of digital services for property valuation and property market analysis. In addition, the Cartel Court may clear transactions subject to conditions or obligations. Appointing an Economic Expert Witness In practice, the Cartel Court appoints an economic expert witness in the early stages of Phase II. The economic analysis is then largely carried out by the expert witness, whose report is of considerable impor - tance to the outcome of the proceedings. If the expert concludes that the transaction would give rise to the creation or strengthening of a dominant position or significantly impedes effective competition, the par - ties may offer remedies to the Cartel Court to obtain clearance. However, in practice, it is much more common for remedies to be offered to the FCA and the FCP. 5.2 Parties’ Ability to Negotiate Remedies In Phase 1, the parties may offer remedies to the FCA and the FCP to convince them not to refer a case to Phase II or to terminate a Phase II proceeding. In addi - tion, Phase II remedies may be offered directly to the Cartel Court to obtain conditional clearance. While only remedies accepted by the Cartel Court result in a formal (conditional) clearance decision,
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