AUSTRIA Law and Practice Contributed by: Gerhard Fussenegger and Florian Neumayr, bpv Huegel
panies, Saubermacher and Pölzleitner and their JV would be significantly restricted by measures such as the separation of IT systems, internal guidelines, and prohibitions on dual employ - ment. Reporting obligations make it easier for the official parties to monitor the requirements. In MSZ/EAFINITY (2024), MSZ also acquired a minority shareholding in Design Center Linz. As part of the transaction, MSZ agreed to waive its rights to grant consent, to access information and to exercise control with respect to Design Center Linz. Recently, the official parties focused on sup - port for competitors. In Gerresheimer/Bormioli (2024), a merger relating to pharmaceutical glass and plastic packaging, the FCA identified com - petition concerns related to the increasing con - centration of pharmaceutical primary packaging made of soda-lime glass. The remedies agreed on aimed at establishing a competitor (remedy taker). Inter alia, it was agreed to transfer some of the target’s customers to the remedy taker, to offer subcontracting to the remedy taker and to support the remedy taker in developing its own production. Concerning a planned joint venture between Miele and Metall Zug, which focused on manufacturing, distribution and cus - tomer support in the field of infection control and contamination prevention, Miele and Metall Zug committed to strengthening Servosan, a com - petitor, through support services and bonus pay - ments. Inter alia, they agreed to sponsor three additional service employees. Access remedies are also relatively frequent. Concerning the acquisition of assets of DHL Austria by Austrian Post, the remedies includ - ed, inter alia, access remedies whereby Aus - trian Post agreed, for a period of ten years, to offer to conclude a contract with every logistics company for the delivery of parcels to Austri -
an recipients. Concerning Meta’s (Facebook’s) acquisition of GIPHY, the Cartel Court imposed remedies on Meta, including, inter alia, a non- discriminatory access to GIPHY’s GIF library for competing social media (for a period of five years), and access for alternative GIF libraries to GIPHY’s GIF library under certain conditions, thereby enabling the establishment of an addi - tional GIF provider alongside GIPHY (Meta) and Tenor (Google) for a period of seven years. With regard to the planned creation of a 50:50 joint venture between Saubermacher and Pölzleit - ner Holz ( Saubermacher/Pölzleitner ), the FCP agreed with the parties in Phase II (April 2023) to ensure third-party access to wood storage sites (which were considered a scarce com - modity due to the numerous permits required). Usually, in cases involving access remedies, a monitoring trustee will be appointed to conduct an ongoing review. “Hold Separate” Remedies Austrian merger practice also uses “hold sepa - rate” remedies that are not tied to divestitures. Such remedies typically involve the purchaser agreeing not to integrate parts of the acquired business with its own activities. Similarly, pur - chasers sometimes commit to continue supply - ing certain products in Austria: eg, in 2019, the caterer Transgourmet took over its competitor Gastro Profi and agreed on remedies for a period of three years. The remedies obliged the com - panies: • to continue operating the target’s site; • to maintain the separate marketing presence and distributions of Transgourmet and Gastro Profi, including a separate pricing and promo - tion policy; and • to ensure that Transgourmet’s own brands were not sold through Gastro Profi.
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