AUSTRIA Law and Practice Contributed by: Gerhard Fussenegger and Florian Neumayr, bpv Huegel
In substance, like all other reportable transac - tions, joint ventures are subject to the domi - nance test and the additional SIEC-test. In addi - tion to the concentrative effects of the merger, any co-ordination between the parent compa - nies that is directly related and necessary to the implementation of the merger is to be assessed in the course of the merger proceedings. Any co-ordination between the parent companies that is not directly related and necessary to the implementation of the merger is deemed beyond the co-ordinative effects resulting from the struc - tural change brought about by the merger and therefore is assessed under the antitrust rules (and not the merger control rules). 5. Decision: Prohibitions and Remedies 5.1 Authorities’ Ability to Prohibit or Interfere With Transactions In Phase I, the official parties cannot pro - hibit a transaction. In Phase II, only the Cartel Court may prohibit a transaction if it creates or strengthens a dominant position or if it results in a significant impediment of effective competition (see 4.1 Substantive Test ). However, prohibition decisions in Austria are very rare. In addition, the Cartel Court may clear transac - tions subject to conditions or obligations. Appointing an Economic Expert Witness In practice, the Cartel Court appoints an eco - nomic expert witness in the early stages of Phase II. The economic analysis is then largely carried out by the expert witness, whose report is of considerable importance to the outcome of the proceedings. If the expert concludes that the transaction would give rise to the creation or strengthening of a dominant position or signifi -
cantly impedes effective competition, the parties may offer remedies to the Cartel Court to obtain clearance. However, in practice, it is much more common for remedies to be offered to the FCA and the FCP. 5.2 Parties’ Ability to Negotiate Remedies In Phase 1, the parties may offer remedies to the FCA and the FCP to convince them not to refer a case to Phase II or to terminate a Phase II proceeding. In addition, Phase II remedies may be offered directly to the Cartel Court to obtain conditional clearance. While only remedies accepted by the Cartel Court result in a formal (conditional) clearance decision, “informal” remedies entered into with the FCA and the FCP to avoid Phase II or to obtain withdrawal of a Phase II request also have a binding effect. An undertaking that fails to comply with such remedies is deemed to have violated the standstill obligation, which may result in substantial fines. Structural and Behavioural Remedies Compared to authorities such as the European Commission, the Austrian authorities are more willing to consider not only structural, but also behavioural remedies. Eg, in FUJIFILM/Hitachi (2021), a “Chinese Wall” remedy was agreed upon. Fujifilm committed to maintaining a long-term supply to a manufactur - er and to implementing mechanisms to ensure that the trade secrets of that competitor are kept confidential and not disclosed to the acquired Hitachi business. In Saubermacher/Pölzleitner (2023), the parties agreed with the FCP that the flow of information between, the parent com -
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