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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