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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