AUSTRIA Law and Practice Contributed by: Gerhard Fussenegger and Florian Neumayr, bpv Huegel
• a description of prior business relationships between the undertakings concerned; • market data for the last three years (com - pared to only the last business year in a short-form notification); • information concerning the relevant supply markets; and • information on the five major customers. If a presumption of dominance pursuant to Sec - tion 4 (2) or (2a) of the Cartel Act is fulfilled (espe - cially, a market share of at least 30%), informa - tion on possible countervailing factors such as buyer power, market entries, efficiencies, exist - ence of a restructuring merger must be provided. Documents submitted should include the organ - isation charts of the undertakings concerned, annual reports, and the basis and sources (eg, economic statistics) for the calculation of the market data provided (listed above). Transac - tion documents are not required (but may be requested). If the transaction results in an affect - ed market, business plans may also be required. The Cartel Court has ruled that the filing and attachments must be submitted in German. In practice, English attachments are often accept - ed (eg, with regard to annual reports). A written power of attorney is not required for filing a transaction in Austria. 3.6 Penalties/Consequences of Incomplete Notification The FCA and the FCP do not have the power to declare the notification incomplete. Only in an application to the Cartel Court for a Phase II proceeding can they request an order that the notification be completed. If the parties con - cerned do not adhere to such an order (which must be issued within one month of the official
parties’ respective request), the notification will be rejected by the Cartel Court. Only recently (March 2022), the Cartel Court rejected the noti - fication in ARAplus/Saubermacher/digi-Cycle . The parties did not answer the Cartel Court’s order to complete the notification in time. Also, in this case and generally in practice, the official parties try to obtain missing information during Phase I. In complex cases, it might be useful to initiate pre-notification talks (see 3.9 Pre-notification Discussions With Authori - ties ) with the official parties to gather feedback concerning the completeness of a notification upfront. Under the Cartel Act, no fines can be imposed for the submission of an incomplete notification as long as the incompleteness does not result in inaccurate or misleading information being provided to the authorities (see 3.7 Penalties/ Consequences of Inaccurate or Misleading Information ). If the non-prohibition of the con - centration or the waiver of a request for a Phase II proceeding was based on incorrect or incom - plete information from the parties, the Cartel Court may impose both a fine and/or ex-post measures on the undertakings concerned. 3.7 Penalties/Consequences of Inaccurate or Misleading Information If the notifying party supplied inaccurate or mis - leading information in the filing, the Cartel Court, upon request of the FCA and/or the FCP, can impose fines on the undertakings concerned of up to 1% of their consolidated worldwide turno - ver. Fines that have been applied in practice include the following.
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