AUSTRIA Law and Practice Contributed by: Gerhard Fussenegger and Florian Neumayr, bpv Huegel
7.2 Contacting Third Parties In more complex cases, it is quite common for the authorities to contact third parties such as competitors, customers and suppliers. Usually, they do this on the basis of written question- naires in which they “test” the information pro - vided in the notification (in particular, regarding market definition and the market position of the parties and competitors). It is also common that remedies offered by the parties are ”market test - ed” in this way (see 3.10 Requests for Informa- tion During the Review Process ). 7.3 Confidentiality The fact of the notification is published on the FCA’s website. It is common for the notifying parties to submit a non-confidential version of the notification. This version is not published, but may be used by the FCA; eg, for the pur - pose of information requests addressed to third parties. 7.4 Co-Operation With Other Jurisdictions Austria is a member of the EU and, as such, the FCA co-operates routinely with its counterparts in other EU and EEA member states. These authorities share with each other basic infor - mation on notifications received and may co- operate more closely on a case-by-case basis. In 2022, the FCA (in accordance with the Ger - man Bundeskartellamt and the Dutch ACM) sub - mitted one request for referral to the European Commission pursuant to Article 22 of the EC Merger Regulation (Adobe Inc.; Figma, Inc.). In practice, the FCA co-operates most often with the German Bundeskartellamt .
Authorities of EU member states must seek a waiver from the parties to share confidential information. 8. Appeals and Judicial Review 8.1 Access to Appeal and Judicial Review Final decisions by the Cartel Court may be appealed to the Supreme Cartel Court by the parties to the transaction, and by the FCA and/ or the FCP. In GIPHY/Facebook and recently in Edwards/JenaValve , the Supreme Cartel Court rejected the FCA’s appeal against the Cartel Court’s clearance decision. 8.2 Typical Timeline for Appeals Appeals against final decisions by the Cartel Court must be brought within four weeks of the decision. The Supreme Cartel Court has two months from receipt of the file in which to decide the appeal. Appeal rests on points of law only (and only “serious doubts” as to the correctness of the decisive facts on which the decision of the Cartel Court is based), which makes it difficult to challenge the Cartel Court’s decisions. In GIPHY/Facebook , the FCA, inter alia, based its (later rejected) appeal on procedural deficiency, the Cartel Court’s alleged incomplete review of the full effectiveness of the conditions (eg, with regard to the exclusion of possibilities for Facebook to circumvent the conditions) and an alleged incomplete sufficient consideration of the Cartel Court of the development on the mar - ket without the transaction and thus the question of which comparative scenario is to be applied in the legal review.
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