AUSTRIA Law and Practice Contributed by: Clemens Hasenauer and Albert Birkner, CERHA HEMPEL
The Austrian merger control regime applies to the fol - lowing concentrations: • the acquisition of an undertaking or a substantial part thereof, by an undertaking, in particular by way of merger or transformation; • the acquisition by an undertaking of rights in the business of another undertaking by means of operational lease or management agreements; • the direct or indirect acquisition of shares in an undertaking by another undertaking if, as a result, the participation (both in equity or voting rights) held after the acquisition is or exceeds 25% or is or exceeds 50%, regardless of whether it confers control; • the establishment of interlocking directorships, which requires that at least half of the members of the management or the supervisory boards of two or more undertakings are identical; • the establishment of any other connection of undertakings that enables an undertaking to directly or indirectly exercise decisive influence over another undertaking. • the establishment of a joint venture that fulfils all functions of an independent economic entity on a lasting basis. The FCA must be notified of these concentrations if certain turnover thresholds are met (provided that no exemption applies). Furthermore, an additional threshold is linked to the turnover of the undertakings involved and the transaction value. For media con - centrations, there are specific thresholds and rules. Austrian merger procedures consist of two phases: Phase I is initiated with the payment of the notification fee (EUR6,000) and receipt of the merger notification. In Phase I, the Official Parties assess whether a con - centration creates or strengthens a dominant position in the respective market. Phase I is statutorily limited to a four-week period but can be extended by two additional weeks upon the notifying party’s request. Phase II is initiated by a request of at least one Official party for an in-depth examination of the transaction. The Cartel Court may prohibit the transaction only within five months (extendable to six months upon request of the notifying party) after receipt of such a request or, where both Official Parties request exami -
nation, the first of both requests. The Cartel Court has to either reject the request in case the transaction is not subject to a notification requirement, prohibit the transaction (which is quite rare in practice) or declare that the transaction is not prohibited (which may be subject to conditions and/or obligations). Appeal proceedings before the Supreme Cartel Court can be initiated within four weeks from receipt of the Cartel Court’s decision. 2.5 Labour Law Regulations An acquirer has to consider the following rules in par - ticular. Protection Against Dismissal The Austrian employment law framework grants spe - cial status to certain groups of employees, such as pregnant women or disabled persons, apprentices and members of the works council. These groups typi - cally enjoy increased protection concerning the termi - nation of their contracts. In addition, older employees enjoy some protection against dismissal, particularly when it results in social hardship or otherwise sub - stantially violates their justified interests. Co-Determination The Austrian Stock Corporation Act provides a two- tier board structure composed of the management and supervisory boards. In some instances, this structure also applies to limited liability companies. The management board is responsible for day-to-day business, while the supervisory board mainly monitors these activities and, in particular, resolves statutory and assigned matters. If a works council is established, the Austrian Labour Constitution Act entitles employees to delegate one- third of the supervisory board’s members and the shareholders elect the remaining two-thirds (principle of one-third parity). Thus, employee representatives may gain insights, are entitled to the same level of information as shareholder delegates and, most nota - bly, actively take part in important business decisions. Acquired Rights Since the implementation of the European Acquired Rights/Transfer of Undertakings Directive, the Employ - ment Contract Law Adaptation Act states that the
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