AUSTRIA Law and Practice Contributed by: Philipp Baubin and Stefan Weber, Weber & Co
9.2 Listed Targets For listed targets, the major shareholder report- ing requirements are laid out in line with the Austrian Stock Exchange Act 2018 ( Börsege - setz 2018). Any person who, directly or indirectly, reaches, exceeds or falls below the thresholds required by law (between 4% and 90% or, if included in the target’s articles, between 3% and 90%) is obliged to file a notification with the FMA, the Vienna Stock Exchange ( Wiener Börse or VSE) and the target without undue delay but within two trading days at the latest. The Austrian Takeover Act ( Übernahmegesetz or ÜbG) also provides for the possibility for the target to lower the takeover threshold which trig- gers the reporting obligation. Reporting require- ments also apply if certain financial instruments are acquired or sold or if a person can exercise or influence the exercising of voting rights with- out being the owner of the financial instruments. 10. Jurisdiction-Specific Features 10.1 Other Acquisition Finance Issues Apart from the considerations discussed in this guide, there are no other relevant considera- tions to take into account in Austrian acquisition finance transactions. This is of course subject to unexpected issues arising on a specific case- by-case basis.
Control Act ( Investitionskontrollgesetz ). In public or particularly regulated deals, banks often issue commitment letters showing that the full purchase price is covered, giving comfort to authorities and sellers. • Foreign direct investment (FDI): in the acqui- sition of a qualified participation by inves- tors from outside the EU in certain sensitive businesses (eg, financial, telecom, media or energy companies), Austrian investment control rules according to the Investment Control Act ( Investitionskontrollgesetz ) require the prior approval of the Austrian Ministry of Economy. The process can delay closing and includes a review of the investor’s ownership structure, source of funds and sometimes the lenders involved as well. • Credit institutions: the acquisition or increase of a direct/indirect qualifying holding in an Austrian credit institution must be reported to the Austrian Financial Market Authority (the “FMA” ). A qualifying holding is one that represents 10% or more of the capital and/or voting rights in the credit institution or which reaches other relevant thresholds (20%, 30% or 50%). • Listed Targets: see 9.2 Listed Targets .
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