AUSTRIA Law and Practice Contributed by: Gerhard Fussenegger and Florian Neumayr, bpv Huegel
network of DHL Austria (a subsidiary of Deutsche Post AG) by Austrian Post, detailed remedies were negoti - ated and agreed on within an extended pre-notifica - tion period and by extending Phase I to six weeks. Also, in Salzburger Alpenmilch/Gmundner Molkerei, several extensive requests for information were sent out and answered, and various commitments were agreed on in (an extended six-week) Phase I. In Phase II, more time is available for discussing rem - edies. In practice, parties often try to negotiate reme - dies in the early stage of Phase II to prevent significant delays to the closing of the transaction. The authorities can, in theory, also propose remedies. The Cartel Court has complete and final discretion regarding which remedies to impose, and, in the absence of an agreement between the parties, it may impose whatever remedies it deems appropriate. In practice, however, remedies are usually based on a proposal by the parties. 5.5 Conditions and Timing for Divestitures The Austrian authorities typically do not make com - pletion of the transaction conditional on compliance with the remedies. However, nothing prevents the offi - cial parties from requiring an upfront buyer to under - take a fix-it-first solution if the circumstances of the case warrant such action. For example, in VTG Rail Assets’ indirect acquisition of Nacco SAS, VTG Rail Assets agreed to sell approximately 30% of the Nacco business upfront to third parties. Failure to comply fully with remedies is subject to fines of up to 10% of consolidated turnover. In addition, failure to comply with obligations imposed by a for - mal conditional clearance decision may result in the imposition of appropriate remedial measures by the Cartel Court. 5.6 Issuance of Decisions Formal decisions are very much the exception under Austrian law but can occur, for example, the Supreme Cartel Court recently confirmed an unconditional clearance of Westinghouse Air Brake Technologies’ acquisition of Couplers HoldCo AB (clutches for rail vehicles). Phase I cases are usually cleared by expiry
of the statutory deadline or waivers issued by the FCA or FCP. In merger notifications of special interest (eg, including remedies), the official parties publish a sum - mary of the case and details of the remedies imposed. Phase II cases, often based on remedies agreed upon by the parties and the FCA or FCP, are usually resolved by the withdrawal of the FCA’s and/or the FCP’s Phase II request(s). In recent practice, the FCA and FCP no longer withdraw their request but wait for the legal deadline of Phase II to expire. The FCA publishes short summaries of remedies cases, as well as the full text of the remedies, on its website. Only cases going through a full Phase II examination (or in the very unlikely event that the Cartel Court, on its own initiative, clears a transaction subject to “conditions and obligations”) are subject to a formal decision by the Cartel Court. These decisions are pub - lished on an online database. 5.7 Prohibitions and Remedies for Foreign-to- Foreign Transactions Given that merger cases are ultimately decided by the Cartel Court (unless there is an appeal to the Supreme Cartel Court), the authorities challenging a merger (the FCA and/or the FCP) have an incentive to resolve cases with remedies, as this gives them some control over the outcome of the proceedings. This results in a very low number of prohibition deci - sions in Austria, while remedies are fairly common. Failing an agreement on remedies, transactions are typically abandoned by the parties. For example, in 2024 and 2025, not a single notified transaction was prohibited by the Cartel Court. The authorities have also required remedies in foreign- to-foreign transactions; for example, in the above- mentioned foreign-to-foreign acquisitions, VTG Rail Assets / CIT Rail Holdings (see 5.5 Conditions and Timing for Divestitures ) and GIPHY / Meta (see 2.6 Calculations of Jurisdictional Thresholds ).
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