AUSTRIA Law and Practice Contributed by: Gerhard Fussenegger and Florian Neumayr, bpv Huegel
There is no de minimis rule, but competitive con - cerns are unlikely where the use of the short- form notification is possible; ie, where there is no affected market (as outlined in 3.11 Accelerated Procedure ). 4.3 Reliance on Case Law The Austrian authorities also refer to the deci - sional practice of other competition authorities, in particular with regard to market definition. The most important points of reference are the Euro - pean Commission and the German FCO. 4.4 Competition Concerns The dominance test and the additional SIEC-test apply to all types of mergers; eg, horizontal, ver - tical and conglomerate transactions. In investi - gating these transactions, the authorities may rely on both unilateral and coordinated effects. In practice, the focus has mostly been on hori - zontal cases that have given rise to high market shares, and on vertical and conglomerate fore - closure issues. Recent decisions also reveal an increasing emphasis on closeness of competi - tion. 4.5 Economic Efficiencies To date, efficiencies have not featured promi - nently in Austrian practice. However, the Cartel Act explicitly provides for efficiencies to be taken into account. 4.6 Non-Competition Issues The Austrian Cartel Act provides for a non-com - petitiveness defence if the national economic advantages significantly outweigh the disadvan - tages of the merger. So far, in spite of this explicit statutory provision, non-competition considera - tions, such as industrial or employment policy, do not play a substantive role in Austrian merger control proceedings.
In the case of media mergers, Austrian merger control also seeks to protect media diversity. The media transaction MFE MEDIAFOREUROPE N.V. (MFE); ProSiebenSat.1 Media SE was filed in Austria. Its legal standard of review was strictly limited to examining the effects of the transaction on media plurality (while, in terms of potential competition concerns, the transaction was examined by the EC under the EU merger control regime). In light of media diversity con - cerns regarding (i) possible reduced local news and content, and (ii) MFE’s stronger focus on the global group, MFE and the official parties agreed on wide-ranging remedies. For example, MFE guaranteed the independence of the man - agement and editorial board of the P7S1 Austria Group, including a separate budget, marketing resources, and headquarters in Austria. Concerning the acquisition of a minority share - holding in NÖP (a publisher of regional newspa - pers in Lower Austria) by Raiffeisen Holding-NÖ- W, the latter (which already holds shareholdings in media undertakings, with a regional supple - ment in Lower Austria) agreed during Phase I to limit its shareholding in NÖP. It also agreed to separate marketing activities for print and online advertising and to guaranteeing NÖP’s editorial independence. 4.7 Special Consideration for Joint Ventures In Austria, contrary to the EUMR, the creation of a non-full function joint venture may qualify as a notifiable transaction if one or both parents transfer assets into the joint venture such that the formation of the joint venture qualifies as an “acquisition of an undertaking or a substantial part of an undertaking” (which is a reportable transaction under Austrian merger control rules, see 2.3 Types of Transactions ).
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