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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