The International Comparative Legal Guide to: Merger Control 2019


The International Comparative Legal Guide to: Merger Control 2019

Global Legal Group
2018, December 21

1. Relevant Authorities and Legislation

1.1 Who is/are the relvant merger authority(ies)?

Austrian Merger Control is characterised by a somewhat complex institutional structure, with several authorities having parallel and subsequent jurisdiction.

The Federal Competition Authority (Bundeswettbewerbsbehörde, "FCA") is an independent federal authority. The FCA is headed by the Director General for Competition, who is appointed by the Austrian government but is not subject to instructions.

The FCA shares jurisdiction in phase I investigations with the Federal Cartel Prosecutor (Bundeskartellanwalt, "FCP"), who reports to the Minister of Justice. Together, the FCA and the FCP are referred o as the "Official Parties". Unlike the FCA, the FCP does not have investigatory powers. Both the FCA and the FCP, however, may initiate phase II investigations by applying for an in.depth investigation by the Cartel Court.

The Cartel Court (Kartellgericht, "CC") is part of the Higher Regional Court of Vienna and Regional Court of Vienna and is the ultimate decision-maker in competition cases (including phase II merger control decisions).

The Competition Commission (Wettbewerbskommission) is an advisory body. It may issue recommendations to the FCA on whether to apply for an in-depth investigation. While these recommendations are not binding, the FCA is required to provide reasons if it does not follow a recommendation.


2. Transactions Caught by Merger Control Legislation

2.1 Which types of transaction are caught- in particular, what constitutes a "merger" and how is the concept of "control" defined

Section 7 CA defines six types of transactions which constitute a concentration:

  • acquisition of an undertaking or a substantial part thereof;
  • acquisition of rights in an undertaking by operational management or operational lease agreements;
  • direct or indirect acquisition of shares of an undertaking if the shareholding reaches or exceeds 25% or 50%
  • establishment of cross-directorships, if at least half of the members of the executive board or the supervisory board of two or more undertakings are identical.
  • acquisition of a direct or indirect controlling influence over another undertaking; and
  • creation of a full-function joint venture.

In practice, the majoirty of mergers notified to the FCA consist of the acquisition of a 25%/50% shareholding or the acquisition of a controlling interest.

The CA does not define a concept of "controlling influence". In practice, the Austrian Courts follow the definition provided in the EC Merger Regulation (Regulation (EC) No 139/2004). Accordingly, "control" consists of the possibility of excercising decisive influence over an undertaking.

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This chapter first appeared in The International Comparative Legal Guide to: Merger Control 2019, published by Global Legal Group, Ltd.


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