AUSTRIA Law and Practice Contributed by: Gerhard Fussenegger and Florian Neumayr, bpv Huegel
• In 2016, a fine of EUR50,000 was imposed on Grosso Holding GmBH, as it was not dis - closed in the filing that two out of the three CEOs of Grosso Holding GmbH (as acquirer in the filed transaction) were also CEOs of an important competitor. • In 2018, a fine of EUR212,000 was imposed on REWE International AG. REWE did not inform the authorities that it had specific plans to open a new Billa supermarket close to the target. 3.8 Review Process The total duration of formal merger control pro - ceedings (Phase I and Phase II) may amount to up to seven-and-a-half months, plus an addi - tional two months, if the decision of the Cartel Court (as court of first instance) is appealed. Phase I takes four weeks, calculated from the date of submission. On request of the notifying party, Phase I can be extended to a total of six weeks. Phase II takes up to five months, calculated from the date when the application of the FCA and/or the FCP for an in-depth examination is received by the Cartel Court. On request of the notifying party, Phase II can be extended to a total of six months. In addition, decisions of the Cartel Court may be appealed to the Supreme Cartel Court, which must decide the appeal within two months, calculated from the date when the court file is received by the Supreme Cartel Court. 3.9 Pre-Notification Discussions With Authorities Pre-notification talks are recommended if the merger is very complex, or if the merger could result in high market shares. Initiation of pre-
notification talks is not published on the FCA’s website. The FCA and FCP can be also contact - ed in advance if there are doubts as to whether filing is necessary. 3.10 Requests for Information During the Review Process Information requests do not suspend the review period. Extension of Phase I (“stop the clock” for two additional weeks) is only possible on request of the parties concerned, although receiving requests for information might cause the parties to apply for an extension of Phase I in the hope of avoiding a Phase II proceeding. Ultimately, parties might be also forced to ”pull and refile” in order to avoid Phase II. The extent of the requests for information very much depends on the peculiarities of the given case. In general, in Phase I, information requests do not tend to be overly data-heavy, as the review deadline is too short for the authorities to perform a sophisticated economic analysis. However, in Phase II, the parties may be required to provide a significant volume of data to the Cartel Court. If the official parties do not receive sufficient information in Phase I, they might initiate a Phase II proceeding before the Cartel Court. It is quite common that, during a Phase I inves - tigation of a transaction that involves competi - tive overlaps, the FCA and/or the FCP will send requests for information to the parties con - cerned. The official parties also might initiate market investigations and thereby include third parties in the process. For example, in the con - text of METRO’s acquisition of AGM wholesale grocery markets in 2022, the FCA carried out an extensive market survey in Phase I. In addi - tion to contacting competitors, the FCA sent a
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