AUSTRIA Law and Practice Contributed by: Gerhard Fussenegger and Florian Neumayr, bpv Huegel
“informal” remedies entered into with the FCA and the FCP to avoid Phase II or to obtain withdrawal of a Phase II request also have a binding effect. An undertaking that fails to comply with such remedies is deemed to have violated the standstill obligation,
Austrian Post, the remedies included, among other things, access remedies whereby Austrian Post agreed, for a period of ten years, to offer to con - clude a contract with every logistics company for the delivery of parcels to Austrian recipients. Concerning Meta’s acquisition of GIPHY, the Cartel Court imposed remedies on Meta, including, among other things, a non-discriminatory access to GIPHY’s GIF library for competing social media (for a period of five years), and access for alternative GIF libraries to GIPHY’s GIF library under certain conditions, thereby enabling the establishment of an additional GIF provider alongside GIPHY (Meta) and Tenor (Google) for a period of seven years. With regard to the planned creation of a 50:50 joint venture between Saubermacher and Pölzleitner Holz ( Saubermacher / Pölzleitner ), the FCP agreed with the parties in Phase II (April 2023) to ensure third-party access to wood storage sites (which were considered a scarce commodity due to the numerous permits required). Usually, in cases involving access remedies, a monitoring trustee will be appointed to conduct an ongoing review. “Hold Separate” Remedies Austrian merger practice also uses “hold separate” remedies that are not tied to divestitures. Such rem - edies typically involve the purchaser agreeing not to integrate parts of the acquired business with its own activities. Similarly, purchasers sometimes commit to continue supplying certain products in Austria: eg, in 2019, the caterer Transgourmet took over its competi - tor Gastro Profi and agreed on remedies for a period of three years. The remedies obliged the companies: • to continue operating the target’s site; • to maintain the separate marketing presence and distributions of Transgourmet and Gastro Profi, including a separate pricing and promotion policy; and • to ensure that Transgourmet’s own brands were not sold through Gastro Profi. In the respective acquisition of Unimarkt grocery stores (Unimarkt went bankrupt in 2025), the Austrian grocery market leaders REWE (acquiring 20 supermar - kets) and SPAR (acquiring 23 supermarkets) agreed in two different proceedings that concerning ten REWE and 17 SPAR Unimarkt supermarkets, so-called “mer -
which may result in substantial fines. Structural and Behavioural Remedies
Compared to authorities such as the European Com - mission, the Austrian authorities are more willing to consider not only structural, but also behavioural rem - edies. For example, in FUJIFILM / Hitachi (2021), a “Chinese Wall” remedy was agreed upon. Fujifilm committed to maintaining a long-term supply to a manufacturer and to implementing mechanisms to ensure that the trade secrets of that competitor are kept confidential and not disclosed to the acquired Hitachi business. In Saubermacher / Pölzleitner (2023), the parties agreed that the flow of information between the parent com - panies, Saubermacher and Pölzleitner and their JV would be significantly restricted by measures such as the separation of IT systems, internal guidelines, and prohibitions on dual employment. In MSZ / EAFINITY (2024), MSZ also acquired a minority shareholding in Design Center Linz. MSZ agreed to waive its rights to grant consent, to access information and to exercise control with respect to Design Center Linz. Recently, the official parties focused on support for competitors. In Gerresheimer / Bormioli (2024), a merg - er relating to pharmaceutical glass and plastic pack - aging, the remedies agreed on aimed at establishing a competitor (“remedy taker”). Inter alia, it was agreed to transfer some of the target’s customers to the rem - edy taker, to offer subcontracting to the remedy taker and to support the remedy taker in developing its own production. Concerning a planned joint venture between Miele and Metall Zug, which focused on con - tamination prevention, Miele and Metall Zug commit - ted to strengthening Servosan, a competitor, through support services and bonus payments. Among other things, they also agreed to sponsor three additional service employees. Access remedies are also relatively frequent. Con - cerning the acquisition of assets of DHL Austria by
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