AUSTRIA Law and Practice Contributed by: Gerhard Fussenegger and Florian Neumayr, bpv Huegel
request for information with up to 87 questions to approximately 1,200 customers. 3.11 Accelerated Procedure A short-form notification is available if there are no affected markets; eg, if after implementa - tion of the transaction the combined horizontal market shares do not reach 15%, if one of the undertakings concerned does not have a mar - ket share of 25% or more in vertically overlap - ping markets or if a presumption of dominance pursuant to Section 4 (2) or (2a) of the Cartel Act is not fulfilled (eg, a market share of at least 30%). Clearance in Phase I may be expedited by obtaining waivers from both the FCA and the FCP of their right to initiate Phase II proceedings. Waivers are not issued automatically, but only upon request by the notifying party. The authori - ties have wide discretion as to whether to grant a waiver and they will typically only do so if the case does not give rise to competition concerns. The notifying party has to demonstrate that there is an urgent need for the transaction to be cleared early; eg, threat of insolvency is usually accepted as a reason for urgency.
Nevertheless, even if these substantive tests are triggered, the Cartel Court must clear the transaction if it gives rise to improvements in the competitive conditions that outweigh its detri - mental effects, or if it is indispensable to the international competitiveness of the parties and justifiable in the interest of the national economy. With the 2021 Amendment, additionally, the noti - fied transaction has to be cleared if the national economic advantages significantly outweigh the disadvantages of the merger. The legisla - tor’s explanatory notes to the 2021 Amend - ment hereby refer to growth, innovation and full employment, the increase of prosperity, income growth, etc. It remains to be seen if this rather vague defined exception will be applied in future. Concerning the dominance test, Austrian law provides for very low statutory thresholds at which the existence of a dominant position will be presumed (rebuttably). In particular, an under - taking will be presumed to hold a dominant posi - tion if its market share is 30% or more. Similarly, low thresholds exist for the existence of collec - tive dominance. While the Austrian authorities are required to investigate the case ex officio and may not sim - ply prohibit a case based on the statutory thresh - olds, these presumptions do have an impact on which cases are referred to Phase II. 4.2 Markets Affected by a Transaction The Austrian authorities will look at the market in which the target is active. Of special interest are markets in which both parties to the transaction are active (horizontal overlaps). Markets that are vertically linked (where, for example, one party is a supplier and the other party is a customer, irrespective of an actual supply relationship between the parties) also have to be identified in the recommended notification form.
4. Substance of the Review 4.1 Substantive Test
Austrian merger control uses the dominance test: a transaction will be prohibited if it creates or strengthens a dominant position. A transac - tion will be also prohibited if it results in “sig - nificant impediment of effective competition” (the ”SIEC-test”). The Austrian legislator hereby incorporated two equal substantive tests in the Cartel Act.
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