AUSTRIA Law and Practice Contributed by: Gerhard Fussenegger and Florian Neumayr, bpv Huegel
8. Appeals and Judicial Review 8.1 Access to Appeal and Judicial Review Final decisions by the Cartel Court may be appealed to the Supreme Cartel Court by the parties to the transaction, and by the FCA and/or the FCP. In GIPHY / Facebook , Edwards / JenaValve and Westing- house / Couplers , the Supreme Cartel Court rejected the FCA’s appeal against the Cartel Court’s clearance decision. 8.2 Typical Timeline for Appeals Appeals against final decisions by the Cartel Court must be brought within four weeks of the decision. The Supreme Cartel Court has two months from receipt of the file in which to decide the appeal. Appeal rests on points of law only (and only “serious doubts” as to the correctness of the decisive facts on which the decision of the Cartel Court is based), which makes it difficult to challenge the Cartel Court’s decisions. In GIPHY / Facebook , the FCA, among other things, based its (later rejected) appeal on procedur - al deficiency, the Cartel Court’s alleged incomplete review of the full effectiveness of the conditions, and the alleged insufficient consideration by the Cartel Court of developments in the market without the transaction.
8.3 Ability of Third Parties to Appeal Clearance Decisions
Only the parties to the transaction, as well as the FCA and FCP, have the right to appeal the Cartel Court’s decisions. 9. Foreign Direct Investment/Subsidies Review 9.1 Legislation and Filing Requirements For application of Austrian FDI-screening proceed - ings, the acquirer in a transaction must be based outside the EU, EEA or Switzerland. Furthermore, the target must be (among other things) an Austrian undertaking (or assets thereof). If the target is active in a highly sensitive sector (as conclusively listed in the ICA 2020, eg, defence equipment and technologies, critical energy infrastructure, water) a “10% or more” acquisition of shares is notifiable. If the target is active in other sensible sectors (as non-conclusively listed in the ICA 2020, eg, energy, information technology, traffic and transport, health, food), any “25% or more” acquisition is notifiable. The authority responsible for FDI screening is the Austrian Federal Minister of the Economy, Energy and Tourism. The FCA forwards each merger control notification to the ministry to enable the latter to check whether FDI screening applies.
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