AUSTRIA Law and Practice Contributed by: Gerhard Fussenegger and Florian Neumayr, bpv Huegel
ple, in the acquisition of certain assets from the logistics network of DHL Austria (a subsidiary of Deutsche Post AG) by Austrian Post, detailed remedies were negotiated and agreed on with - in an extended pre-notification period and by extending Phase I to six weeks. Also, in Salz- burger Alpenmilch/Gmundner Molkerei , several extensive requests for information were sent out and answered and various commitments agreed on in (an extended six-week) Phase I. In Phase II, more time is available for discussing remedies. Negotiating and Proposing Remedies There is no standard approach for discussing remedies with the official parties. In practice, parties often try to negotiate remedies in the ear - ly stage of Phase II to prevent significant delays to the closing of the transaction. The authorities can, in theory, also propose rem - edies. The Cartel Court has complete and final discretion regarding which remedies to impose, and, in the absence of an agreement between the parties, it may impose whatever remedies it deems appropriate. In practice, however, remedies are usually based on a proposal by the parties. 5.5 Conditions and Timing for Divestitures The Austrian authorities typically do not make completion of the transaction conditional on compliance with the remedies. However, noth - ing prevents the official parties from requiring an upfront buyer or fix-it-first solution if the cir - cumstances of the case warrant such action. See, eg, VTG Rail Assets’ indirect acquisition of Nacco SAS, whereby VTG Rail Assets agreed
to sell upfront approximately 30% of the Nacco business to third parties. Failure to comply fully with remedies is subject to fines of up to 10% of consolidated turnover. In addition, failure to comply with obligations imposed by a formal conditional clearance deci - sion may result in the imposition of appropriate remedial measures by the Cartel Court. 5.6 Issuance of Decisions Formal decisions are very much the exception under Austrian law. Phase I cases are cleared by expiry of the statutory deadline or waivers issued by the FCA and the FCP. In merger notifications of special interest (eg, including remedies), the official parties publish a summary of the case and details of the remedies imposed. Phase II cases, often based on remedies agreed upon by the parties and the FCA or FCP, are usu - ally resolved by the withdrawal of the FCA’s and/ or the FCP’s Phase II request(s). In recent prac - tice, the FCA and FCP no longer withdraw their request but wait for the legal deadline of Phase II to expire. The FCA publishes short summaries of remedies cases, as well as the full text of the remedies, on its website. Only cases going through a full Phase II exami - nation (or in the very unlikely event in which the Cartel Court, on its own initiative, clears a transaction subject to “conditions and obliga - tions”) are subject to a formal decision by the Cartel Court. These decisions are published in an online database. 5.7 Prohibitions and Remedies for Foreign-to-Foreign Transactions Given that merger cases are ultimately decided by the Cartel Court (unless there is an appeal to the Supreme Cartel Court), the authorities chal -
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