Merger Control 2025

AUSTRIA Law and Practice Contributed by: Gerhard Fussenegger and Florian Neumayr, bpv Huegel

lenging a merger (the FCA and/or the FCP) have an incentive to resolve cases with remedies, as this gives them some control over the outcome of the proceedings. This results in a very low number of prohibition decisions in Austria, while remedies are fairly common. Failing an agree - ment on remedies, transactions are typically abandoned by the parties. For example, in 2024, not a single notified transaction was prohibited by the Cartel Court. Foreign-to-foreign mergers do not receive any different legal treatment. The authorities have also required remedies in foreign-to-foreign transactions; eg, in the above-mentioned for - eign-to-foreign acquisitions, VTG Rail Assets/ CIT Rail Holdings (see 5.5 Conditions and Tim- ing for Divestitures ) and GIPHY/Facebook (see 2.6 Calculations of Jurisdictional Thresholds ). 6. Ancillary Restraints and Related Transactions 6.1 Clearance Decisions and Separate Notifications Merger control clearances also cover ancillary restraints to the extent that they are directly related to, and necessary for, the implementa - tion of the transaction. No separate notification is required (or indeed possible) for such arrange - ments. As experience in Austria is scarce, the European Commission’s Ancillary Restraints Notice provides some guidance on what types of restraints may be considered ancillary and thus covered by the clearance. Eg, in the acquisition of certain assets from the logistics network of DHL Austria (a subsidiary of Deutsche Post) by Austrian Post, the FCA explic - itly stated that merger control clearance did not constitute a decision on the permissibility of a

co-operation arrangement between ÖPAG and Deutsche Post in connection with the notified acquisition. In relation to a planned joint ven - ture between Miele and Metall Zug, which was designed to focus on manufacturing, distribution and customer support in the field of infection control and contamination prevention, the FCA had concerns about a considerable reduction in horizontal competition. To address these issues, Miele and Metall Zug committed to strengthen - ing Servosan, one competitor, through support services and bonus payments. 7. Third-Party Rights, Confidentiality and Cross-Border Co-Operation 7.1 Third-Party Rights Third parties are entitled to submit their obser - vations to the authorities, both in Phase I and in Phase II, but they do not have any further pro - cedural rights and do not receive party status. In particular, third parties are not granted access to the file. Also, the seller is considered to be a third party. In Phase II of merger proceedings (as in any proceedings before the Cartel Court), access to the file is subject to the parties’ consent. In the context of damage claims following on from a cartel infringement, this rule has been found to be in violation of EU law by the ECJ in the Donau Chemie case. However, the 2021 Amend - ment did not change the basic rule that access to the Cartel Court’s file is subject to the par - ties’ consent and only introduced new rights for damage claimants to request the disclosure of documents in damage proceedings.

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