AUSTRIA Law and Practice Contributed by: Gerhard Fussenegger and Florian Neumayr, bpv Huegel
5.3 Legal Standard There is no specific legal standard that remedies must meet. Like the European Commission, the Austrian authorities will assess whether the remedies pro - posed are suitable to address the specific competition concern(s) at issue. Precedents, in very general terms, define remedies as an order requiring the merging companies to act, tolerate or refrain from doing something. Remedies must ensure that the merger meets the substantive tests. If this requirement is achieved by remedies, the merger cannot be prohibited. In accepting remedies, the authorities do, however, The Cartel Court may modify a remedy that was pre - viously put in place to clear a merger, if necessary to account for later developments in the market. In a 2019 decision regarding a 2015 merger of two brewers (Brau Union/VKB), certain obligations imposed on the merging brewers to run their operations independently had not had the expected pro-competitive effect on the market. The Cartel Court therefore terminated the obligations at an earlier point in time than it had previ - ously ordered. In addition, remedies exclusively agreed with the FCA and the FCP can be modified based on changes in the competitive circumstances (eg, the merger of Axel Springer/Media Impact). In relation to Diebold / Win- cor Nixdorf (2016), the FCA decided in 2024, after an extensive market survey, that Diepold’s remedies in the ATM maintenance market remained necessary (the remedies mainly focused on guaranteeing independ - ent maintenance providers’ access to spare parts and information). have wide discretion. Modifying Remedies 5.4 Negotiating Remedies With Authorities There is no procedural regime for discussing remedies with the official parties, nor are there any strict dead - lines. However, if the parties want to consider offering remedies in Phase I, these should be offered relatively early in the process, given the short time available to the authorities (a maximum of six weeks). For example, in the acquisition of certain assets from the logistics
chant remedies” apply. Following these remedies, the respective acquired sites will be operated by inde - pendent REWE and SPAR merchants for a period of ten and 20 years. The merchants are largely free to set their own prices and determine their product range, thereby strengthening competition in an already highly concentrated market not only with other food retail - ers, but also with REWE’s and SPAR’s own branches. Additionally, at seven of the 17 locations subject to the remedies, SPAR agreed, for a period of 20 years, that it would only acquire further food retail stores inside a radius of a five-minute drive if these stores fell below the Austrian merger notification thresholds. Structural Remedies Structural remedies are also used. In Brau Union / Fohrenburger (2020), Brau Union agreed not to buy or lease any new restaurants in Vorarlberg or brewer - ies in Austria for the next five years. In Saubermacher / Pölzleitner (2023), the remedies imposed included an acquisition ban covering the relevant product and geographic market. In eBay / Adevinta (2021) the par - ties agreed, among other things, that eBay would reduce its acquired 100% share in Adevinta – which operates the Austrian platform willhaben.at, a com - petitor of ebay.at – to a (maximum) 33% share within 18 months after closing. In Metro / AGM (2022), Metro agreed to sell two out of nine wholesale grocery mar - kets it acquired from AGM. The FCA noted, in this regard, that structural restraints have a direct effect on the market structure after the merger by means of a one-time – usually stronger – intervention and are therefore usually more effective than behaviour - al restraints. Regarding Tipico’s acquisition of Atlas Group, the FCA agreed on clearance subject to reme - dies, which included divesting 20 Tipico-owned shops to active competitors, the rebranding/transitioning of 14 franchise shops and monitoring by a trustee. Media Diversity Austrian merger control also protects media diversity. Therefore, remedies might be required in order to guarantee media diversity, eg, by requiring that edito - rial teams or marketing teams of merging newspapers have to work independently for a certain period after the merger (see 4.6 Non-Competition Issues ).
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