Merger Control 2025

Definitive global law guides offering comparative analysis from top-ranked lawyers

CHAMBERS GLOBAL PRACTICE GUIDES

Merger Control ` 2025

Definitive global law guides offering comparative analysis from top-ranked lawyers

Contributing Editors Jean-François Bellis and Porter Elliott Van Bael & Bellis

Global Practice Guides

Merger Control Contributing Editors Jean-François Bellis and Porter Elliott Van Bael & Bellis

2025

Chambers Global Practice Guides For more than 20 years, Chambers Global Guides have ranked lawyers and law firms across the world. Chambers now offer clients a new series of Global Practice Guides, which contain practical guidance on doing legal business in key jurisdictions. We use our knowledge of the world’s best lawyers to select leading law firms in each jurisdiction to write the ‘Law & Practice’ sections. In addition, the ‘Trends & Developments’ sections analyse trends and developments in local legal markets. Disclaimer: The information in this guide is provided for general reference only, not as specific legal advice. Views expressed by the authors are not necessarily the views of the law firms in which they practise. For specific legal advice, a lawyer should be consulted. Content Management Director Claire Oxborrow Content Manager Jonathan Mendelowitz Senior Content Reviewers Sally McGonigal, Ethne Withers, Deborah Sinclair and Stephen Dinkeldein Content Reviewers Vivienne Button, Lawrence Garrett, Sean Marshall, Marianne Page, Heather Palomino and Adrian Ciechacki Content Coordination Manager Nancy Laidler Senior Content Coordinators Carla Cagnina and Delicia Tasinda Content Coordinator Hannah Leinmüller Head of Production Jasper John Production Coordinator Genevieve Sibayan

Published by Chambers and Partners 165 Fleet Street London EC4A 2AE Tel +44 20 7606 8844 Fax +44 20 7831 5662 Web www.chambers.com

Contents

INTRODUCTION Contributed by Jean-François Bellis and Porter Elliott, Van Bael & Bellis p.5

GERMANY Law and Practice p.210 Contributed by Linklaters

Trends and Developments p.233 Contributed by Redeker Sellner Dahs GREECE Law and Practice p.241 Contributed by Karatzas & Partners GUATEMALA Law and Practice p.262 Contributed by Mayora & Mayora, S.C INDIA Trends and Developments p.275 Contributed by JSA INDONESIA Law and Practice p.286 Contributed by ABNR Counsellors at Law

AUSTRIA Law and Practice p.11 Contributed by bpv Huegel BELGIUM Law and Practice p.33 Contributed by Van Bael & Bellis

CHILE Law and Practice p.49 Contributed by Estudio Lizana Trends and Developments p.72 Contributed by Estudio Lizana CHINA Law and Practice p.79 Contributed by King & Wood Mallesons Trends and Developments p.103 Contributed by JunHe LLP CYPRUS Law and Practice p.111 Contributed by Georgiades & Pelides Contributed by HAVEL & PARTNERS Trends and Developments p.152 Contributed by HAVEL & PARTNERS EGYPT Law and Practice p.161 Contributed by GLA & Company EU Law and Practice p.183 Contributed by Van Bael & Bellis CZECH REPUBLIC Law and Practice p.133

JAPAN Law and Practice p.305 Contributed by Ikeda & Someya

KUWAIT Law and Practice p.326

Contributed by GLA & Company Trends and Developments p.342 Contributed by Meysan

MEXICO Law and Practice p.350

Contributed by Von Wobeser y Sierra Trends and Developments p.369 Contributed by Galicia Abogados, S.C. MONTENEGRO Law and Practice p.377 Contributed by BDK Advokati Trends and Developments p.396 Contributed by BDK Advokati

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Contents

NIGERIA Law and Practice p.403

TAIWAN Law and Practice p.574 Contributed by Lee and Li, Attorneys-at-Law Trends and Developments p.593 Contributed by Lee and Li, Attorneys-at-Law THAILAND Law and Practice p.600 Contributed by Chandler Mori Hamada Limited TÜRKIYE Law and Practice p.612 Contributed by ELIG Gürkaynak Attorneys-at-Law Trends and Developments p.634 Contributed by ELIG Gürkaynak Attorneys-at-Law

Contributed by Streamsowers & Köhn Trends and Developments p.422 Contributed by Streamsowers & Köhn NORWAY Law and Practice p.429 Contributed by BAHR Trends and Developments p.450 Contributed by BAHR

PERU Trends and Developments p.457 Contributed by Payet, Rey, Cauvi, Pérez Abogados

PHILIPPINES Law and Practice p.464 Contributed by Villaraza & Angangco SAUDI ARABIA Law and Practice p.483 Contributed by GLA & Company

UAE Law and Practice p.640 Contributed by GLA & Company UK Law and Practice p.662 Contributed by Van Bael & Bellis

SERBIA Trends and Developments p.508 Contributed by Drašković Popović & Partners

UKRAINE Law and Practice p.688 Contributed by AVELLUM

SINGAPORE Law and Practice p.516 Contributed by Drew & Napier LLC

USA Law and Practice p.706 Contributed by Axinn, Veltrop & Harkrider LLP Trends and Developments p.728 Contributed by Axinn, Veltrop & Harkrider LLP

SWEDEN Law and Practice p.539 Contributed by Vinge SWITZERLAND Law and Practice p.557 Contributed by Homburger

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INTRODUCTION

Contributed by: Jean-François Bellis and Porter Elliott, Van Bael & Bellis

Van Bael & Bellis (VBB) is a leading EU and UK competition law practice, advising on the full range of competition issues, including merger control. From its offices in Brussels and Lon - don, the VBB team assists clients at both the EU and national levels, notably appearing be - fore the European Commission, the UK Compe - tition and Markets Authority (CMA) and the EU and UK courts, acting as lead counsel in many landmark cases. Within the field of merger con - trol, a VBB team of EU and UK specialists rep -

resents merging parties and complainants in cases involving key issues of jurisdiction, pro - cedure and substantive law, and has secured clearance for numerous complex transactions before the European Commission and the CMA. It also helps clients to obtain merger clearance from member state authorities for transactions that do not meet EU thresholds. The firm is fre - quently called on to co-ordinate global merger control filings.

Contributing Editors

Jean-François Bellis is the co-founder and current chair of Van Bael & Bellis. He has extensive experience in assisting clients in a broad range of antitrust issues, including

Porter Elliott is the co-head of competition law at Van Bael & Bellis and a leading expert on EU merger control law and the EU Foreign Subsidies Regulation, as well as foreign

cartels, dominant market positions, mergers and state aid. Jean-François has written extensively on competition law and has spoken on this subject at numerous international conferences. He is also a professor of EU competition law at the Institute of European Studies of the University of Brussels.

direct investment screening. For nearly 30 years, he has successfully guided dozens of complex and high-profile transactions through the regulatory process, both in Europe and elsewhere. He has also represented third parties in successfully challenging and preventing the approval of proposed mergers. Porter regularly teaches, writes and speaks on issues of competition and merger control law, and has conducted training for merger control authorities.

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INTRODUCTION Contributed by: Jean-François Bellis and Porter Elliott, Van Bael & Bellis

Van Bael & Bellis Glaverbel Building Chaussée de la Hulpe 166 Terhulpsesteenweg B-1170 Brussels Belgium Tel: +32 2 647 73 50 Fax: +32 2 640 64 99 Email: brussels@vbb.com Web: www.vbb.com

As M&A Remains Sluggish, the Merger Control Sands are Shifting After a slow 2023, many market analysts pre - dicted a significant recovery in M&A activity in 2024. This recovery did not materialise. In fact, the number of transactions declined in 2024 compared to 2023, although total deal value slightly increased, buoyed by a few very large deals, such as ExxonMobil’s USD64.5 billion acquisition of Pioneer Natural Resources. Undeterred speculators had high expecta - tions heading into 2025, which so far have not been met, as US tariff hikes and other policy measures, as well as geopolitical instability, have exacerbated market uncertainty and risk aversion. Whether the second half of 2025 will see the beginning of the long-anticipated M&A rebound remains to be seen. Either way, from a merger control perspective, it is clear that 2025 will be remembered as an unusually tumultu- ous year, with significant changes and increas - ing uncertainty prevailing in major jurisdictions around the globe. Changing landscapes across key merger control jurisdictions European Union As of 1 December 2024, there is a new EU Competition Commissioner: Teresa Ribera has

replaced Margrethe Vestager, who had held the position for the previous decade. Commissioner Ribera enters the job with a strong background on environmental issues – which is part of her new portfolio – and a clear mission from Euro - pean Commission President Ursula von der Ley - en to “modernise the EU's competition policy to ensure it supports European companies to innovate, compete and lead world-wide and contributes to our wider objectives on competi - tiveness and sustainability, social fairness and security”. On merger control specifically, Presi - dent von der Leyen has ordered a review of the Commission’s horizontal merger control guide - lines to “give adequate weight to the European economy’s more acute needs in respect of resil - ience, efficiency and innovation”. This follows the September 2024 publication of the much-discussed “Draghi Report”, which describes the need to increase European pro - ductivity as “an existential challenge” requiring “radical change” in a number of areas, one of which is competition law, including merger con - trol. According to the Draghi Report, the strict application of the EU merger control rules has generally been good for competition, but it has also made it difficult for European companies in certain key industries to scale up as needed to be able to invest more in innovation and com -

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INTRODUCTION Contributed by: Jean-François Bellis and Porter Elliott, Van Bael & Bellis

pete more effectively on the global stage with rivals from the United States, China and else - where. Commissioner Ribera and her staff at the Direc - torate-General for Competition are currently reviewing both the Commission’s horizontal and non-horizontal merger guidelines. What the new guidelines will look like when they eventu - ally come out and what practical effect they will have, if any, on the Commission’s assessment of mergers, especially those between European companies, remain to be seen. Meanwhile, the issue of whether and where in the EU a merger may need to be filed has become increasingly complex. As has been the case since the first EU Merger Regulation (EUMR) in 1989, transactions that do not meet the thresholds of the EUMR may be subject to review by the competition authorities of EU member states whose national filing thresholds are met. However, an increasing number of EU member states are now adopting “call-in” pow - ers that allow their competition authorities to take jurisdiction over transactions that fall below their filing thresholds and would otherwise not require merger control review. As a result, it is no longer possible to rule out the review of below- threshold mergers in these member states. There is also the possibility that mergers that are “called in” by a member state could sub - sequently be referred to the Commission for review, possibly even after closing has taken place, significantly lessening the legal certainty once enjoyed by merging parties. United States The election of President Donald Trump to a second, non-consecutive term has led to con - siderable upheaval at the two federal agencies

responsible for US merger control enforcement. Former Chair of the Federal Trade Commission (FTC) Lina Khan, whose envelope-pushing inter - ventionism made her a polarising figure on both sides of the aisle, has been replaced by Andrew Ferguson, who was promoted from FTC com - missioner to Chair. Trump also dismissed Khan’s fellow Democratic commissioners, leaving only Republicans as FTC commissioners. Meanwhile, Gail Slater replaced Jonathan Kanter as head of the Antitrust Division of the Department of Justice. Despite some clamouring to scrap the 2023 Merger Guidelines issued under the Biden administration and revert to the previous guide - lines, both the FTC and Department of Justice have now indicated that this will not happen. Nevertheless, there will no doubt be changes in how mergers are reviewed in the US. Under Ferguson and Slater, the US agencies are widely expected to take a more open view than their predecessors to remedies as a means of solving competition concerns. This willingness to find a way to clear problematic deals may encourage more such details to be filed. This is not to suggest that US merger control enforce - ment will not continue to be rigorous, especially in certain sectors such as Big Tech. The adminis - tration was not known to be soft on merger con - trol during Trump’s first term. Rather, compared to the Biden administration, US merger control enforcement in the current term is more likely to be “old school” than “new wave”. One new development that merging parties should be aware of is that the US has recently taken a page (or rather many pages) from the EU, introducing a much more detailed Hart-Scott- Rodino (HSR) merger filing form. This new form

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INTRODUCTION Contributed by: Jean-François Bellis and Porter Elliott, Van Bael & Bellis

substantially increases the time and resources needed to file a merger in the US. United Kingdom The UK’s voluntary notification regime remains “voluntary” in name only, as the “share-of-sup - ply” jurisdictional threshold allows the UK Com - petition and Markets Authority (CMA) significant discretion in deciding which deals it considers to merit review. Envisaged changes to the law, the current government’s priorities on growth and investment, and the CMA’s reaction to the gov - ernment’s steer probably foretell a less assertive approach than was witnessed in the CMA’s post- Brexit heyday. Indeed, the CMA has indicated that it may opt not to investigate certain interna - tional deals that are already being investigated by other authorities, such as those of the EU or US, or where remedies offered in other jurisdic - tions would likely resolve any UK concerns. Still, the CMA remains a force to be reckoned with. Merging parties that overlook the UK as a merger control jurisdiction do so at their peril, especially in the case of deals with a clear UK nexus. Australia While the UK maintains its voluntary filing regime, Australia is joining the vast majority of merger control jurisdictions worldwide that have a mandatory filing requirement and a suspensory regime that makes it illegal to close a transac - tion before the deal has been approved. The new Australian rules go into full effect in Janu - ary 2026, and given the relatively low turnover thresholds, it will be interesting to see how the Australian Competition and Consumer Commis - sion (ACCC) handles what will likely be a huge uptick in the number of notifications.

Other jurisdictions These are only some of the merger control juris - dictions that companies must bear in mind when seeking regulatory approval of their mergers. It is also not unusual for global deals to require notification and approval in countries such as Brazil, Canada, China, Japan, South Korea and Turkey, to name just a few. Clearly, the challenges that both in-house and external counsel face on how to obtain merger control approvals as quickly and efficiently as possible remain acute. This makes having a clear guide such as this one all the more essen - tial. Indeed, the Chambers Merger Control 2025 guide provides answers to all the most pressing questions companies and their lawyers face with every notifiable transaction. Filing location For starters, where does the deal need to be filed? This is a crucial question, as there are potentially serious consequences for failing to make a required merger control filing, includ - ing the imposition of heavy fines. Unfortunately, it can be tricky to determine where filings are required in a given case. Although an ever-increasing number of countries have some form of merger control law, there remains very little standardisation, with each merger control regime continuing to have its own test to determine which transactions amount to a notifiable event. Some jurisdictions catch only changes in control, while others also cover certain acquisitions of non-controlling minority stakes. Moreover, every jurisdiction has its own set of fil - ing thresholds based on various factors, such as the parties’ revenues, asset value, market share, and the size of the transaction. An increasing

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INTRODUCTION Contributed by: Jean-François Bellis and Porter Elliott, Van Bael & Bellis

number of authorities now also have “call-in” powers. Given this, determining where to file requires a careful country-by-country analysis. As such, each chapter of the 2025 edition of the Chambers Merger Control guide indicates whether that jurisdiction has such powers and whether it has in fact called in below-threshold transactions. A new challenge faced by merging parties is the possibility of having to make separate, poten - tially very onerous filings under the EU Foreign Subsidies Regulation (FSR), distinct from any merger control filing that may also be required. The FSR requires, inter alia, notification to and prior approval by the Commission of certain transactions where one party is established in the EU and the other (typically the acquirer, but also possibly a merging party or joint venture partner) benefits from “financial contributions” meeting certain monetary thresholds. Obtaining FSR approval is proving to be a major additional challenge for companies to overcome before they can close their deal. Moreover, an increasing number of countries (virtually every EU member state, as well as doz - ens of non-EU countries) now have foreign direct investment (FDI) legislation that may require additional filings and approvals. Although neither FDI nor subsidies fall within what one tradition - ally has in mind when speaking of “merger con - trol”, they represent significant further hurdles now faced by merging companies. Substantive reviews Once it has been determined where merger con - trol filings need to be made, the next question is what the regulatory reviews will entail and what needs to be done in order to obtain approval in each jurisdiction. Again, each merger control regime has its own test for determining whether

a given transaction will be approved – while the approach may be broadly similar across jurisdic - tions, there are nuances in each that are impor - tant to understand. For example, is the legal test for assessing merg - ers based on maintaining effective competition, avoiding the creation or strengthening of a domi - nant position, or some other standard? Are verti - cal mergers subject to the same level of scrutiny as horizontal mergers? How are efficiencies con - sidered by the regulator in its assessment? Is the agency’s analysis based purely on competition law principles or are there other (eg, public inter - est) considerations at play? What kinds of argu - ments are most likely to be persuasive to each authority, and how does one ensure a consistent approach across jurisdictions given international co-operation between regulators? Timing Of course, another key issue will be how the reg - ulatory process affects timing. After all, there is no such thing as a deal that is not time-sensitive. In every transaction, there is a sense of urgency and a desire to close as soon as possible, ideally the day before yesterday. This urgency needs to be reconciled with the fact that, with some notable exceptions, most merger control jurisdictions require closing to be suspended until regulatory approval has been granted. As indicated above, Australia has now been added to this group. Taking into account the time needed to prepare the filing(s), which in challenging cases can easily be hundreds of pages long (excluding annexes) in certain juris - dictions, the time spent in “pre-notification con - sultations” with the relevant authorities before formal filing occurs (an increasingly common practice), and the time it takes for the review process(es) to play out, closing can easily be

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INTRODUCTION Contributed by: Jean-François Bellis and Porter Elliott, Van Bael & Bellis

delayed for a couple of months in simple cases, or for well over a year in more challenging ones. Reasonable timelines need to be set for the par - ties, and expectations must be managed care - fully. Once again, every jurisdiction has its own procedural rules and deadlines, so co-ordinating the reviews across the world can be a significant challenge. This applies even more so where rem - edies are required in order to obtain approval in one or more jurisdictions. Conclusion For the above reasons (and many more), navi- gating a global merger control filing and approval process is a complex business, and it is getting more complex every year. The Chambers Merger Control 2025 guide aims to cut through some of that complexity by providing the reader with a practical guide, in a user-friendly format, that covers many of the world’s leading merger con - trol jurisdictions. The sections in this guide cover the key rules relevant for a merger control filing assessment, including: • the kinds of transactions that have to be noti - fied (or are subject to review); • what the filing thresholds are; • the procedure and timeline for notification and approval; • the substantive considerations of the authori - ties; and • what kind of enforcement record the authori - ties have.

However, the chapters also go beyond the letter of the law and provide useful information on how these rules are applied in practice. For instance, the sections on applicable fines for failure to file cover not only whether such penalties exist and what their legal maximum is, but, more impor - tantly, whether these penalties are applied in practice and what penalties have been imposed recently. Although by no means a substitute for seek - ing advice from experienced merger control counsel, this guide provides clear and practical answers to most of the fundamental questions faced by any company involved in a transaction that requires merger control filings (while also addressing foreign direct investment and foreign subsidies filings and approvals). The reader will find this guide to be a very useful tool for navi - gating their way through the increasingly com - plex labyrinth of global merger control. As with any work of this nature, compiling this guide has been a team effort. With this in mind, we would like to thank all the authors for their contributions, as well as the Chambers team for their diligence and professionalism.

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AUSTRIA

Czech Republic

Germany

Slovak

Vienna

Austria

Law and Practice Contributed by: Gerhard Fussenegger and Florian Neumayr bpv Huegel

Hungary

Italy

Slovenia

Croatia

Contents 1. Legislation and Enforcing Authorities p.14 1.1 Merger Control Legislation p.14 1.2 Legislation Relating to Particular Sectors p.14 1.3 Enforcement Authorities p.14

2. Jurisdiction p.14 2.1 Notification p.14 2.2 Failure to Notify p.15

2.3 Types of Transactions p.15 2.4 Definition of “Control” p.16 2.5 Jurisdictional Thresholds p.17 2.6 Calculations of Jurisdictional Thresholds p.17 2.7 Businesses/Corporate Entities Relevant for the Calculation of Jurisdictional Thresholds p.19 2.8 Foreign-to-Foreign Transactions p.19 2.9 Market Share Jurisdictional Threshold p.19 2.10 Joint Ventures p.19

2.11 Power of Authorities to Investigate a Transaction p.20 2.12 Requirement for Clearance Before Implementation p.20 2.13 Penalties for the Implementation of a Transaction Before Clearance p.20 2.14 Exceptions to Suspensive Effect p.20 2.15 Circumstances Where Implementation Before Clearance Is Permitted p.21 3. Procedure: Notification to Clearance p.21 3.1 Deadlines for Notification p.21 3.2 Type of Agreement Required Prior to Notification p.21 3.3 Filing Fees p.21 3.4 Parties Responsible for Filing p.21 3.5 Information Included in a Filing p.21 3.6 Penalties/Consequences of Incomplete Notification p.22 3.7 Penalties/Consequences of Inaccurate or Misleading Information p.22 3.8 Review Process p.23 3.9 Pre-Notification Discussions With Authorities p.23 3.10 Requests for Information During the Review Process p.23 3.11 Accelerated Procedure p.24

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AUSTRIA CONTENTS

4. Substance of the Review p.24 4.1 Substantive Test p.24 4.2 Markets Affected by a Transaction p.24

4.3 Reliance on Case Law p.25 4.4 Competition Concerns p.25 4.5 Economic Efficiencies p.25 4.6 Non-Competition Issues p.25

4.7 Special Consideration for Joint Ventures p.25 5. Decision: Prohibitions and Remedies p.26 5.1 Authorities’ Ability to Prohibit or Interfere With Transactions p.26 5.2 Parties’ Ability to Negotiate Remedies p.26 5.3 Legal Standard p.28 5.4 Negotiating Remedies With Authorities p.28 5.5 Conditions and Timing for Divestitures p.29 5.6 Issuance of Decisions p.29 5.7 Prohibitions and Remedies for Foreign-to-Foreign Transactions p.29

6. Ancillary Restraints and Related Transactions p.30 6.1 Clearance Decisions and Separate Notifications p.30 7. Third-Party Rights, Confidentiality and Cross-Border Co-Operation p.30 7.1 Third-Party Rights p.30 7.2 Contacting Third Parties p.31 7.3 Confidentiality p.31 7.4 Co-Operation With Other Jurisdictions p.31 8. Appeals and Judicial Review p.31 8.1 Access to Appeal and Judicial Review p.31 8.2 Typical Timeline for Appeals p.31

8.3 Ability of Third Parties to Appeal Clearance Decisions p.32 9. Foreign Direct Investment/Subsidies Review p.32 9.1 Legislation and Filing Requirements p.32

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AUSTRIA Law and Practice Contributed by: Gerhard Fussenegger and Florian Neumayr, bpv Huegel

bpv Huegel is a full-service firm offering exper - tise in various areas, including competition law, corporate law, M&A, regulatory matters, tax, pri - vate client services and insolvency law. Its high - ly ranked competition law department consists of four partners, a counsel and four associates. The firm has offices in Austria (Vienna, Salzburg and Baden) and in Brussels. The firm advises

on all competition law matters, including merger control (EU, multi-jurisdiction and Austria). With its broad CEE network (“bpv LEGAL”, with of - fices in the Czech Republic, Slovakia, Hungary and Romania), bpv Hügel’s roster of blue-chip clients includes some of the largest companies in Austria and multinationals from around the world.

Authors

Gerhard Fussenegger is a partner at bpv Huegel and is based in Vienna and Brussels. He specialises in EU and Austrian antitrust law, merger control law (EU, multi-

Florian Neumayr is the managing partner at bpv Hügel, based in Vienna, where he leads the dispute resolution practice and co-chairs the firm’s competition law department.

jurisdictional and Austrian merger filings), distribution law and foreign direct investment screening (Investment Control Act). Gerhard holds an LLM degree from King’s College London.

Florian advises on all aspects of Austrian and EU competition law (cartels, abuse of market dominance, merger control and procurement). His practice has a special focus on dispute resolution (litigation, arbitration, mediation) and, in particular, private enforcement.

bpv Huegel Schreyvogelgasse 2 1010 Vienna Austria Tel: +43 1 26050 205 Email: Gerhard.Fussenegger@bpv-huegel.com Web: www.bpv-huegel.com

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AUSTRIA Law and Practice Contributed by: Gerhard Fussenegger and Florian Neumayr, bpv Huegel

1. Legislation and Enforcing Authorities 1.1 Merger Control Legislation

investment screening (“FDI-screening”, see 9.1 Legislation and Filing Requirements ). For specific sectors, particular authorities also have to be notified of transactions. For example, with regard to the bank and insurance sector, the Austrian Financial Market Authority ( Finanzmark- taufsichtsbehörde or FMA), which acts pursuant to the Austrian Financial Market Authority Act ( Finanzmarktaufsichtsbehördengesetz or FMA- BG), must also be notified. 1.3 Enforcement Authorities Filings have to be made with the official parties ( Amtsparteien ): the FCA and the Federal Cartel Prosecutor ( Bundeskartellanwalt or FCP). The FCA is an independent body, whereas the FCP is subordinate to the Federal Minister of Justice. The FCA and/or the FCP are responsible for applying to the Cartel Court ( Kartellgericht ) for an in-depth (Phase II) investigation of a notified transaction. The Cartel Court is the only compe - tent authority that is legally entitled to substan - tively rule on the legality of a notified transaction, eg, by prohibiting it or by granting clearance. Decisions and orders of the Cartel Court can be appealed to the Supreme Cartel Court ( Kartel- lobergericht ).

The Austrian Cartel Act of 2005 (as amended) ( Kartellgesetz , the “Cartel Act”) contains the main provisions of Austrian merger control, eg: • the definition of a notifiable “merger” or ”acquisition” (Section 7 of the Cartel Act); • the turnover thresholds (Section 9 of the Car - tel Act); and • the substantive test for mergers (Section 12 of the Cartel Act). Additionally, the Austrian Competition Act 2002 (as amended) ( Wettbewerbsgesetz , the “Compe - tition Act”) also refers to merger control matters. The Federal Competition Authority ( Bundeswett- bewerbsbehörde or FCA) provides guidance on its website (also provided in English) concern - ing basic aspects of merger control practice in Austria, including, defining a merger, threshold values, notification requirements and pre-noti - fication. The FCA, in co-operation with the German Bun- deskartellamt (Federal Cartel Office or FCO), also published guidance on its transaction value- based notification threshold, as introduced in 2017 (including an English version). 1.2 Legislation Relating to Particular Sectors Following the Austrian Investment Control Act ( Investitionskontrollgesetz 2020 or the ICA 2020), which is based on Regulation (EU) 2019/452, the acquisition of (parts of) undertakings, shares, substantial influence or even assets of under - takings is notifiable under the foreign-direct-

2. Jurisdiction 2.1 Notification

If the preconditions for filing are fulfilled (with regard to turnover thresholds, the type of trans - action and an effect in Austria), notification prior to closing of the deal is compulsory in Austria, with no exceptions.

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AUSTRIA Law and Practice Contributed by: Gerhard Fussenegger and Florian Neumayr, bpv Huegel

2.2 Failure to Notify Failure to notify a transaction is considered to be an infringement of the prohibition on imple - mentation before clearance. In addition to nul - lifying the underlying transactional agreements, the Cartel Court, upon request of the FCA and/or the FCP, may impose fines on the undertakings concerned of up to 10% of their consolidated worldwide turnover. The Supreme Cartel Court has ruled that the fail - ure to notify is generally considered a serious infringement of competition law. In fact, failure to notify has been in the focus of the FCA’s prac - tice in recent years. Concerning Meta’s failure to notify its acquisition of Giphy, the Cartel Court, at the request of FCA, imposed a fine of EUR9.6 million. The acquisition itself was cleared with remedies by the Cartel Court (following a Phase II review and as subsequently upheld by the Supreme Cartel Court). Other fines, mostly based on settlement proce - dures and imposed by the Cartel Court, ranged from EUR20,000 to EUR120,000. Recently, the Supreme Cartel Court has been taking a very strict approach concerning failure to notify. In October 2024, it increased the fine imposed on Palmers Textil Aktiengesellschaft by a factor of 20, and therefore from EUR5,000 (as imposed by the Cartel Court as court of first instance) to EUR100,000. The fine was based on Palmer’s establishment of the joint venture Hygiene Austria. Palmers and the other joint ven - ture shareholder, Lenzing AG (which was fined EUR75,000) had breached the standstill obliga - tion by informing the public of the establishment of the company through a press release and by taking operational action before receiving merg - er clearance.

In a groundbreaking decision in February 2025, the Supreme Cartel Court imposed a fine of EUR70 million on Rewe for its failure to notify the takeover of a lease agreement concerning retail space for a food store. Again, the Supreme Cartel Court substantially increased the fine from the initial EUR1.5 million imposed by the Car - tel Court. The Supreme Court rejected REWE’s argument that neither the parent company’s turnover nor that generated by separate busi - ness fields should be taken into account in the assessment. Interestingly, shortly after the Supreme Cartel Court’s ruling in REWE , the FCA, after initiating an investigation, concluded that the acquisition of former KIKA/Leiner sites (a former furniture retailer), which were closed in 2023 by XXXLutz, a leading furniture retailer in Austria, did not constitute a merger. In the FCA’s view, XXXLutz did not violate the prohibition on implementing a merger as no operational business relating to the selling of furniture could be attributed to the locations involved in the proceedings/acquisi - tion. The (Supreme) Cartel Court’s decisions will be Under Section 7 of the Cartel Act, the follow - ing types of transactions are caught by Austrian merger control: • the acquisition of an undertaking or a sub - stantial part of an undertaking; • the acquisition of a right to an operating site of another undertaking through operational lease/transfer of a business; • the indirect or direct acquisition of 25% or more, or 50% or more, of the shares or voting published on different websites. 2.3 Types of Transactions

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AUSTRIA Law and Practice Contributed by: Gerhard Fussenegger and Florian Neumayr, bpv Huegel

rights in an undertaking (independent of the acquisition of control); • the establishment of cross-directorships, ie, acts that ensure that at least half of the mem - bers of the executive board or the supervisory board in two or more undertakings are the same; • the achievement of any other relationship between undertakings whereby an undertak - ing may directly or indirectly exercise a deci - sive influence over another undertaking; and • the creation of a joint venture that performs, on a lasting basis, all the functions of an autonomous economic entity. Some of the above-listed transactions (bullet points two, four and potentially also five) by definition cover operations that do not involve the transfer of shares or assets. A controlling influence without a transfer of shares or assets might be achieved, eg, by: • attaching special rights to preferential shares (eg, the minority shareholders’ right to appoint more than half of the members of the supervisory board); • a de facto controlling influence by minority shareholder who are highly likely to achieve a majority at the shareholders’ meetings due to the percentage of shareholders in attendance; or • minority shareholders acting together in exer - cising their voting rights. Intra-group restructurings or reorganisations are not covered by Austrian merger control. 2.4 Definition of “Control” “Control” is not defined in the Cartel Act. The Austrian Supreme Cartel Court (Case No 16 Ok 7/07) has confirmed that a controlling influ -

ence under the Cartel Act, Section 7 is identi - cal to exercising “decisive influence” within the meaning of Article 3 of Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (EUMR). In the same decision, the Supreme Cartel Court also defined ”sole” and “joint” control as follows. Joint Control Joint control exists where the controlling share - holders all have the “possibility to influence stra - tegic decisions”, eg, where such decisions can - not be taken without the participation of other shareholders. In defining the term ”strategic decisions”, the Supreme Cartel Court referred to the Commission’s Consolidated Jurisdictional Notice No 139/2004 and listed the “budget, the business plan, major investments or the appoint - ment of senior management” as rights that typi - cally confer joint control. Sole Control Sole control is achieved if the acquirer is able to influence the strategic competitive behaviour of the target independently. The Supreme Cartel Court again follows the Commission’s Jurisdic - tional Notice (including for cases of negative sole control). Acquisition of Shares As discussed in 2.3 Types of Transactions , the direct or indirect acquisition of 25% or more (or 50% or more) of the shares or voting rights of an undertaking is caught by Austrian merger con - trol, independent of whether control is acquired or not. In addition, under Austrian case law, the acquisition of even less than 25% of the shares or voting rights in an undertaking is caught by Austrian merger control if the acquirer gets rights that are comparable to minority rights typically attributed to a 25% or more shareholder.

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AUSTRIA Law and Practice Contributed by: Gerhard Fussenegger and Florian Neumayr, bpv Huegel

2.5 Jurisdictional Thresholds According to the “classic threshold” of Section 9 (1) of the Cartel Act, the thresholds of Austrian merger control are met if the undertakings con - cerned achieved the following turnover figures in the previous business year: • a combined global turnover of more than EUR300 million; • a combined turnover of more than EUR30 million in Austria, of which at least two com - panies each achieve more than EUR1 million; and • at least two of the relevant undertakings each had a global turnover of more than EUR5 mil - lion. Furthermore, if only one of the undertakings con - cerned had a turnover of more than EUR5 million in Austria, the global turnover of the other under - taking involved must exceed EUR30 million in order to require merger notification (Section 9 (2) of the Cartel Act). According to the supplementary “transaction- value-based” notification threshold (Section 9 (4) of the Cartel Act), a concentration has to be notified to the official parties if: • the combined worldwide turnover of the undertakings concerned exceeds EUR300 million; • the combined Austrian turnover of the under - takings exceeds EUR15 million; • the value of the consideration for the transac - tion exceeds EUR200 million; and • the target is active in Austria to a significant extent. For mergers that occur in the media sector, a special turnover calculation has to be applied. Depending on the status of the undertak -

ings concerned (eg, newspaper, publisher) the respective turnover must be multiplied by a fac - tor of 200 or 20. 2.6 Calculations of Jurisdictional Thresholds Classic Threshold The thresholds under Section 9 (1) of the Cartel Act (see 2.5 Jurisdictional Thresholds ) refer to the previous business year, are based on turno - ver (ie, asset values are not taken into account) and are calculated based on net turnover gener - ated by ordinary or regular business activities. Foreign turnover must be converted on the basis of official currency exchange rates, eg, the Euro - pean Central Bank’s (ECB’s) official exchange rates for the previous business year. Special rules for calculating turnover apply for credit institutions and insurance companies. Value-of-Transaction Threshold The transaction value-based notification thresh - old (Section 9 (4) of the Cartel Act) applies when three criteria are met: • turnover thresholds; • the value of the transaction; and • significant activity of the target in Austria (“domestic activity”). The turnover thresholds are, as with the classic threshold, calculated on the basis of net turno - ver generated by ordinary or regular business activities. The value of the transaction (in euros) is based on “consideration”. According to the explana - tory notes to the law and the FCA’s guidance, ”consideration” comprises any value (which means any monetary benefits) that the seller

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AUSTRIA Law and Practice Contributed by: Gerhard Fussenegger and Florian Neumayr, bpv Huegel

receives from the acquirer in connection with the transaction. If a new joint venture creating a previously non- existing company is established by several par - ties that each transfers consideration into the new entity, the sum of those considerations must be used in calculating the value of the transaction. Satisfying the “domestic activity” requirement In determining whether the transaction value- based threshold’s requirement of “domestic activity” by the target is satisfied, the focus is on current market-related activity. In contrast to Section 9 (1) of the Cartel Act (see 2.8 Foreign- to-Foreign Transactions ), domestic activity is measured on the basis of domestic turnover only if this turnover adequately reflects the market position. Recently, the Supreme Cartel Court decided in Edwards/JenaValve (16 Ok 2/25t (28 March 2025)) that to verify the significant domes - tic activity, the activities of the target at the time of the (planned) implementation of the merger must be examined, whereas possible or even planned future activities (in subsequent years) are not to be taken into account. The sales rev - enues expected after closing are therefore irrel - evant. In practice, the FCA routinely finds that there is no domestic activity if the turnover of domestic target companies is below EUR1 mil - lion. However, domestic turnover over EUR1 million does not necessarily establish significant domestic activity, and all the circumstances will be taken into consideration by the authority. In addition to the EUR1 million threshold, various criteria (including non-remunerative factors) for measuring activities may be applied, depending on the sectors and activities.

The measurement should be carried out in line with objective industry standards. For example, in the digital sector, the explanatory notes in Austria refer to user numbers (“monthly active users”) or the access frequency of a website (”unique visitors”) as examples of possible indi - cators. For instance, in assessing Facebook’s planned acquisition of GIPHY, the FCA, consid - ered not only the direct use figures via GIPHY’s own website and app, but also the users of oth - er services, websites and apps of third parties that integrate GIPHY. In relation to Salesforce’s acquisition of Tableau Software, the Cartel Court (applying the approach used by the FCA) con - firmed the target’s substantial domestic activ - ity based on the target having a market share in Austria of 5-10% in the software segment of modern BI platforms. However, in its recent Edwards/JenaValve decision, the Supreme Car - tel Court overruled this decision and stated that a target company having a certain market share in the relevant market in Austria is not a decisive factor when determining whether the activity is domestic. Furthermore, in Austria, the location of the target company is also relevant in determin - ing whether it has significant domestic activity under Section 9 (4) of the Cartel Act. Domestic activity must be presumed where the target has a physical presence (eg, a subsidiary office) in Austria. However, this presumption must also take account of the extent to which the activities at this site are orientated towards the domestic market. The mere fact that the target owns an EU-wide product authorisation or a (European) patent registered in several countries does not (yet) constitute domestic activity. Likewise, the number or stage of development of (pipeline) products is not sufficient to establish domestic activity.

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AUSTRIA Law and Practice Contributed by: Gerhard Fussenegger and Florian Neumayr, bpv Huegel

2.7 Businesses/Corporate Entities Relevant for the Calculation of Jurisdictional Thresholds The relevant turnover is the turnover of the buyer and the target. However, if the seller keeps 25% or more of the shares (and/or direct control) in the target, the seller’s turnover must also be included in the target’s turnover. Austrian law provides for a somewhat extraordi - nary definition of what constitutes the relevant “group”, which deviates from the rules of the EUMR. Under Austrian law, the turnover of all undertakings linked to the parties concerned by direct or indirect control, or by an upstream or downstream shareholding of at least 25%, must be included in full (ie, not on a pro rata basis). Changes in the business (such as acquisitions or divestments) after closing of the preceding financial year but before implementation of the planned transaction must be reflected in the analysis of whether the relevant thresholds are met. 2.8 Foreign-to-Foreign Transactions Foreign-to-foreign transactions are subject to merger control in Austria; a local presence is not required. If the thresholds are triggered, a filing is required unless the “effects doctrine” applies. Besides the precondition that the target does not achieve any turnover in Austria, it must be shown that the planned transaction will have no effect on the Austrian market. Effects resulting in an obligation to file could exist, for example, on the basis that the target will be active in Aus - tria in the near future, or that the target, though not active in Austria, is active in a broader geo - graphic market that encompasses Austria (eg, an EU-wide market).

With the introduction of the second national threshold (see 2.5 Jurisdictional Thresholds ), the “effects doctrine” can only apply if the tar - get (without any turnover in Austria) will have, post-transaction, two parental undertakings, which both hold at least 25% in the target and which both trigger the national thresholds (ie, combined Austrian turnover of EUR30 million and EUR1 million each). 2.9 Market Share Jurisdictional Threshold There is no market share threshold in Austrian merger control. 2.10 Joint Ventures Under Section 7 (2) of the Cartel Act, Austrian merger control follows Article 3 (4) of the EUMR, according to which “the creation of a joint ven - ture performing on a lasting basis all the func - tions of an autonomous economic entity shall constitute a concentration”. However, contra - ry to the EUMR (which, as clarified in Austria Asphalt GmbH & Co OG v Bundeskartellanwalt , ECLI:EU:C:2017:643, C-248/16, only treats full-function joint ventures as concentrations, whether newly created or converted from an existing undertaking), the creation of a non-full- function joint venture might also trigger an obli - gation to file in Austria. This is the case if one of the parent companies transfers a ”substantial part of an undertaking” into the joint venture. A “substantial part” may include production facili - ties, customer lists, patents, etc. In specifying the term ”substantial part”, the Supreme Cartel Court refers to whether a (potential) market posi - tion is, or will be, transferred with the transaction (Case No 16 Ok 8/01).

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AUSTRIA Law and Practice Contributed by: Gerhard Fussenegger and Florian Neumayr, bpv Huegel

2.11 Power of Authorities to Investigate a Transaction If the thresholds of Austrian merger control are not met, the Austrian competition authorities cannot call in a transaction under merger con - trol standards. However, they can investigate a transaction based on antitrust criteria according to both Article 101 of the TFEU and Section 1 of the Cartel Act. There is also the possibility (though very rare in practice) that a merger which does not meet the turnover thresholds may still qualify as an abuse of dominance under Section 5 of the Cartel Act. Furthermore, in its Towercast judgment of 16 March 2023, the European Court of Justice (ECJ) ruled that national competition authorities (NCAs) and courts can review acqui - sitions by dominant entities under Article 102 of the TFEU, if those acquisitions are not notifiable under EU or national merger control laws. As the legal consequence of not notifying a noti - fiable transaction is nullification of the underlying agreements, there is no statute of limitations on the authorities’ ability to investigate a transac - tion. 2.12 Requirement for Clearance Before Implementation Completion of a transaction must be suspended until clearance. As discussed in 2.2 Failure to Notify , closing a transaction before clearance is subject to penal - ties of up to 10% of the consolidated turnover of the parties. The Supreme Cartel Court ruled that a transac - tion is deemed “implemented” once the acquirer obtains the ”opportunity to exercise economic influence”, regardless of whether, or when, it actually exercises that influence.

2.13 Penalties for the Implementation of a Transaction Before Clearance As outlined in 2.2 Failure to Notify , failure to notify and, therefore, implementation prior to receiving clearance, has been in the focus of the FCA’s practice in recent years. 2.14 Exceptions to Suspensive Effect Austrian merger control, in contrast to EU law (see Article 7 (2) EUMR), does not provide any exceptions to the suspensive effect. In general, no such exception applies to failing firms, either. Under Section 19 of the Cartel Act, notification is not required for certain types of transactions that are not considered to be an “acquisition” under the meaning of Section 7 of the Cartel Act, such as: • credit institutions may acquire shares (but not assets) in undertakings, if the shares are acquired only for the purpose of resale; • certain private equity undertakings may acquire shares (but not assets), if the accom - panying voting rights are exercised only to maintain the full value of those investments and not to determine, directly or indirectly, the competitive conduct of those undertakings; and • while the first two exceptions are in line with EU law, the Cartel Act goes further by addi - tionally exempting acquisitions by credit institutions which are made to restructure a financially suffering target or to secure claims towards the target. As discussed at 2.12 Requirement for Clear- ance Before Implementation , the Supreme Car - tel Court ruled that acceptance of a takeover bid is considered to be an implementation of a transaction (which requires immediate clear - ance).

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