AUSTRIA Law and Practice Contributed by: Clemens Hasenauer and Albert Birkner, CERHA HEMPEL
2.2 Primary Regulators Merger Control
der” ) could add further momentum. In Austria, transaction volumes are expected to remain below the long-term average. Targeted meas - ures in key industries could help restore investor confidence. Additionally, ESG (environmental, social and governance) issues continue to be important, especially for institutional investors. 1.3 Key Industries In 2024, the industrial sector accounted for 83 transactions, thus being the most attractive industry for M&A transactions in Austria in terms of number of transactions. The industrial sector was followed by the telecommunications, media, and technology sector (with 70 transactions) and the consumer products and retail sector (with 25 transactions). Regarding disclosed transaction volume, the tel - ecommunications, media and technology sector led the way at EUR1.5 billion, with the industrial sector trailing behind with a transaction volume of EUR1.3 billion. 2. Overview of Regulatory Field 2.1 Acquiring a Company In Austria, a private M&A is usually structured as a purchase of shares in the target company (share deal) or business assets (asset deal). In the case of a share deal, the buyer directly acquires the shares in the target and (only) indirectly the target’s business. In an asset deal, the buyer acquires a business from a seller, which means that the assets and liabilities need to move from the seller to the buyer (subject to limitations – in particular, with respect to liabilities, the parties may further define the details of the scope of the purchased assets).
As regards merger control, the relevant authori - ties are the Federal Competition Authority (FCA) which is the recipient of Austrian merger control filings, the Federal Cartel Prosecutor and the Cartel Court. Depending on the turnover thresh - olds, competence may pass to the European Commission, in which case the EU Merger Reg - ulation exclusively applies, excluding the appli - cation of the rules under the Austrian merger control regime. Dependence on Industry/Target Type Depending on the industry of the target entity, regulators such as the Financial Market Authority or E-Control (an authority monitoring the Austri - an energy market) may supervise M&A activities and require additional notification obligations, approvals or “fit and proper” tests. Further - more, M&A activities within sensitive industries – as listed in an annex to the relevant law – may require approval by the Austrian Ministry for Digi - tal and Economic Affairs (see 2.3 Restrictions on Foreign Investments ). Public takeovers of shares in Austrian-listed entities falling within the scope of the Austrian Takeover Act are regulated and supervised by the Austrian Takeover Com - mission. Dependence on Asset Class With regard to real estate, acquisitions may be subject to notification or approval by regional land transfer authorities (see 2.3 Restrictions on Foreign Investments ). 2.3 Restrictions on Foreign Investments Apart from restrictions that may be equally rel - evant for Austrian investors (eg, notification duties in cases of acquisition of certain share percentages in Austrian listed companies and approval/non-prohibition of the acquisition of
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