AUSTRIA Law and Practice Contributed by: Gerhard Fussenegger and Florian Neumayr, bpv Huegel
6. Ancillary Restraints and Related Transactions 6.1 Clearance Decisions and Separate Notifications Merger control clearances also cover ancillary restraints to the extent that they are directly related to, and necessary for, the implementation of the trans - action. No separate notification is required (or indeed possible) for such arrangements. As experience in Austria is scarce, the European Commission’s Ancil - lary Restraints Notice provides some guidance on what types of restraints may be considered ancillary and thus covered by the clearance. For example, in the acquisition of certain assets from the logistics network of DHL Austria (a subsidiary of Deutsche Post) by Austrian Post, the FCA explicitly stated that merger control clearance did not consti - tute a decision on the permissibility of a co-operation arrangement between ÖPAG and Deutsche Post in connection with the notified acquisition. In relation to a planned joint venture between Miele and Metall Zug, which was intended to focus on manufactur - ing, distribution and customer support in the field of infection control and contamination prevention, the FCA had concerns about a considerable reduction in horizontal competition. To address these issues, Miele and Metall Zug committed to strengthening Servosan, one competitor, through support services and bonus payments. 7. Third-Party Rights, Confidentiality and Cross-Border Co-Operation 7.1 Third-Party Rights Third parties are entitled to submit their observations to the authorities, both in Phase I and in Phase II, but they do not have any further procedural rights and do not receive party status. In particular, third parties are not granted access to the file. Also, the seller is considered to be a third party. In Phase II of merger proceedings (as in any proceed - ings before the Cartel Court), access to the file is sub - ject to the parties’ consent. In the context of dam - age claims following on from a cartel infringement,
this rule has been found to be in violation of EU law by the ECJ in the Donau Chemie case. However, the 2021 Amendment did not change the basic rule that access to the Cartel Court’s file is subject to the par - ties’ consent, and only introduced new rights for dam - age claimants to request the disclosure of documents in damage proceedings. 7.2 Contacting Third Parties In more complex cases, it is quite common for the authorities to contact third parties such as competi - tors, customers and suppliers. Usually, they do this on the basis of written questionnaires in which they “test” the information provided in the notification (in particular, regarding market definition and the market position of the parties and competitors). It is also com - mon that remedies offered by the parties are “market tested” in this way (see 3.9 Requests for Information During the Review Process ). 7.3 Confidentiality The fact of the notification is published on the FCA’s website. It is common for the notifying parties to sub - mit a non-confidential version of the notification. This version is not published, but may be used by the FCA; eg, for the purpose of information requests addressed to third parties. 7.4 Co-Operation With Other Jurisdictions Austria is a member of the EU and, as such, the FCA co-operates routinely with its counterparts in other EU and EEA member states. These authorities share basic information on notifications received and may co-operate more closely on a case-by-case basis. In 2025, the FCA (in accordance with the Dutch ACM) submitted one request for referral to the European Commission pursuant to Article 22 of the EUMR (Uni - versal Music, Downtown Music). In practice, the FCA co-operates most often with the German Bundeskartellamt . Authorities of EU member states must seek a waiver from the parties to share confidential information.
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