AUSTRIA Law and Practice Contributed by: Martin Schiefer and Christian Richter-Schöller, Schiefer Rechtsanwälte GmbH
endanger security or public order within the meaning of Articles 52 and 65, TFEU. The statutory factors mir - ror Article 4 of the FDI Screening Regulation: effects on critical infrastructure and critical technologies, expressly including dual-use items, on the supply of critical inputs and on access to sensitive informa - tion, as well as acquirer-related factors such as state control or state funding, prior involvement in activities affecting security, and the risk of illegal or criminal activities. Defence-specific considerations include access to classified information and defence technology, the dependence of the Austrian Armed Forces or of co- operative programmes on the target’s supplies, and the risk of technology leakage through the acquirer’s group. 6.6 Conditions, Remedies and Prohibition Clearance may be granted subject to conditions, which can be behavioural or structural: protection of classified information and know-how; retention of capabilities, research or production in Austria; sup - ply commitments towards Austrian authorities; and governance measures such as information barriers or restrictions on the acquirer’s access to defined busi - ness areas. Prohibition is available where conditions cannot remove the danger, and transactions implemented in breach of the standstill can be addressed through orders to restore the previous situation, including unwinding. In practice, conditional clearance is the typical outcome in sensitive defence cases; outright prohibitions remain rare. 6.7 Golden Shares and Special Government Rights Austria does not use golden shares or comparable special government rights in defence companies, and there is no statutory special-rights regime for the sec - tor. Where state influence exists, it flows from ordinary shareholdings, managed through the state holding company in other strategic sectors, and from the reg - ulatory instruments described above: FDI screening, facility security clearances and contract terms. The restrictive case law of the CJEU on golden shares under the free movement of capital would in any event
narrowly confine such instruments; defence-specific special rights would require a genuine justification under Article 346, TFEU. 6.8 Joint Ventures in the Defence Sector There is no defence-specific joint venture statute; several regimes apply in layers. FDI screening applies where a third-country partner obtains the relevant influence over an Austrian defence business; merger control applies where the thresholds are met; export control applies to any transfer of controlled technology or technical assistance into the joint venture, including intangible transfers to foreign parent personnel; and the classified-information rules apply where the joint venture performs classified contracts, including facil - ity clearances and national personnel requirements. The allocation of background and foreground IP is contractual. Government customers commonly require usage rights for maintenance and further development, and EU-funded projects impose their own rules on results and access rights. Licensing arrangements with export control flow-downs are the standard mechanism for technology transfer. 6.9 Interaction with Competition/Antitrust Review FDI screening and merger control run in parallel and independently: the Investment Control Act procedure before the Federal Ministry for Economy, and merger control before the Federal Competition Authority and the Cartel Court or, for transactions with an EU dimen - sion, before the European Commission. There is no statutory co-ordination mechanism; the parties must align the timing themselves, and the standstill obliga - tions are cumulative. For EU-dimension mergers, Article 21 (4) of the EU Merger Regulation (Council Regulation (EC) No 139/2004) permits Austria to take measures to protect legitimate interests, including public security, along - side the Commission’s competition review, and Article 346, TFEU can additionally shield genuine defence aspects. National security review may not be used to pursue competition objectives, and vice versa; in defence transactions, the security conditions are typi - cally the binding constraint.
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