AUSTRIA Law and Practice Contributed by: Clemens Hasenauer and Albert Birkner, CERHA HEMPEL
2. Overview of Regulatory Field 2.1 Acquiring a Company
Dependence on Asset Class With regard to real estate, acquisitions may be subject to notification or approval by regional land transfer authorities (see 2.3 Restrictions on Foreign Invest- ments ). Foreign Subsidies The EU has enacted the Foreign Subsidies Regulation (Regulation (EU) 2022/2560), which, inter alia, requires prior clearance of certain M&A transactions by the European Commission. 2.3 Restrictions on Foreign Investments Apart from restrictions that may be equally relevant for Austrian investors (eg, notification duties in cases of acquisition of certain share percentages in Austrian listed companies and approval/non-prohibition of the acquisition of certain qualified shareholdings in the financial sector), restrictions that may also have rel - evance to foreign investors mainly relate to real estate and certain industries that are critical for security and/ or public order. Further restrictions may stem from anti-money laundering (AML) legislation and know- your-customer (KYC) requirements, as well as in rela - tion to intended transactions with blacklisted/sanc - tioned foreign states and/or individuals. FDI screening in Austria is addressed in detail in 2.6 The main sources on antitrust and merger control are the Austrian Cartel Act 2005 and the Austrian Com - petition Act. Furthermore, the European Merger Con - trol Regulation (EUMR; Council Regulation (EC) No 139/2004) is directly applicable in Austria. Depending on turnover thresholds, transactions of a certain size become subject to merger control clearance by the FCA or the European Commission. The Austrian merger control regime is not applicable to transactions that have a “Community dimension” and thus fall within the scope of the EUMR. If a trans - action falls within the scope of the EUMR, only the European Commission will be competent to review the transaction. National Security Review . 2.4 Antitrust Regulations
In Austria, private M&A is usually structured as a pur - chase of shares in the target company (a share deal) or of business assets (an asset deal). In the case of a share deal, the buyer directly acquires the shares in the target and (only) indirectly the target’s business. In an asset deal, the buyer acquires a business from a seller, meaning the assets and liabilities must be transferred from the seller to the buyer, subject to limitations (in particular, with respect to liabilities, the parties may further define the scope of the purchased assets). 2.2 Primary Regulators Merger Control As regards merger control, the relevant authorities are: • the Federal Competition Authority (FCA), which receives Austrian merger control filings; • the Federal Cartel Prosecutor (together with the FCA, the “Official Parties”); and • the Higher Regional Court of Vienna, acting as the Cartel Court. Phase II reviews are conducted by the Cartel Court, while the Supreme Court, acting as the “Supreme Car - tel Court”, functions as the appellate court. Depending on the turnover thresholds, competence may pass to the European Commission. Dependence on Industry/Target Type Depending on the target entity’s industry, regulators such as the Financial Market Authority or E-Control (an authority that monitors the Austrian energy mar - ket) may supervise M&A activities and require addi - tional notification obligations, approvals or “fit and proper” tests. Furthermore, M&A activities in certain industries critical to security and/or public order may require approval from the Austrian Federal Ministry for Economy, Energy and Tourism (Ministry) (see 2.3 Restrictions on Foreign Investments ). Public takeo - vers of shares in Austrian-listed entities falling within the scope of the Austrian Takeover Act are regulated and supervised by the Austrian Takeover Commission.
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