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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