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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