AUSTRIA Law and Practice Contributed by: Gerhard Fussenegger and Florian Neumayr, bpv Huegel
However, structural remedies are also used. In Brau Union/Fohrenburger (2020), Brau Union agreed not to buy or lease any new restaurants in Vorarlberg or breweries in Austria for the next five years. In Saubermacher/Pölzleitner (2023), the remedies imposed included an acquisition ban covering the relevant product and geo - graphic market. In eBay/Adevinta (2021) the par - ties agreed, inter alia, that eBay would reduce its acquired 100% share in Adevinta – which operates the Austrian platform willhaben.at a platform in Austria, a competitor toebay.at – to a (maximum) 33% share within 18 months after closing. In Metro/AGM (2022), Metro agreed to sell two out of nine wholesale grocery markets it acquired from AGM. The FCA noted, in this regard, that structural restraints have a direct effect on the market structure after the merg - er by means of a one-time – usually stronger – intervention and are therefore usually more effective than behavioural restraints. Media Diversity Austrian merger control also protects media diversity. Therefore, remedies might be required in order to guarantee media diversity, eg, by requiring that editorial teams or marketing teams of merging newspapers have to work indepen - dently for a certain period after the merger (see 4.6 Non-Competition Issues ). 5.3 Legal Standard There is no specific legal standard that remedies must meet. Similarly to the European Commis - sion, the Austrian authorities will assess whether the remedies proposed are suitable to address the specific competition concern(s) at issue. Precedents, in very general terms, define rem - edies as an order requiring the merging compa - nies to act, tolerate or refrain from doing some - thing. Remedies must ensure that the merger
meets the substantive tests. If this requirement is achieved by remedies, the merger cannot be prohibited. In accepting remedies, the authorities do, how - ever, have wide discretion. Modifying Remedies As demonstrated in a 2019 decision regarding a 2015 merger of two brewers (Brau Union/VKB), the Cartel Court may modify a remedy that was previously put in place to clear a merger if nec - essary to account for later developments in the market. In that case, certain obligations imposed on the merging brewers to run their operations independently had not had the expected pro- competitive effect on the market. The Cartel Court therefore terminated the obligations at an earlier point in time than it had previously ordered as a condition for clearing the merger. Also remedies exclusively agreed on with the FCA and the FCP can be modified based on changes of the competitive circumstances (see the merger of Axel Springer/Media Impact). In relation to Diebold/Wincor Nixdorf (2016), the FCA, after an extensive market survey, in 2024 deemed that Diepold’s remedies in the ATM maintenance market remained necessary (the remedies mainly focused on guaranteeing independent maintenance providers’ access to spare parts and information). 5.4 Negotiating Remedies With Authorities There is no procedural regime for discussing remedies with the official parties, nor are there any strict deadlines. However, if the parties want to consider offering remedies in Phase I, these should be offered relatively early in the process, given the short time available to the authorities (a maximum of six weeks). For exam -
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