In the first quarter of 2018, at the request of the FCA, the Austrian Cartel Court imposed fines for the implementation of a notifiable transaction prior to obtaining clearance in two separate cases. The court imposed a fine of EUR 185,000 on Stahl Lux 2 S.A. regarding the acquisition of sole control over the leather chemicals business of Clariant International AG, Switzerland. According to the press release of the FCA, the infringement lasted from 30 April 2014 until 1 September 2017. In the other case, the court imposed a fine of EUR 40,000 on Comparex AG with respect to the acquisition of all shares in Datalog Software AG. The infringement lasted from 6 February 2012 until 28 October 2017. The fine amounted to approx. 0.00189% of Comparex' 2016/17 revenues of approx. EUR 2,114 million.1
Under Austrian merger control rules, a notifiable concentration must not be implemented prior to obtaining clearance from the Austrian competition authorities ("standstill obligation"). If the undertakings concerned implement a notifiable transaction prior to clearance ("gun jumping"), the Austrian cartel court – at the request of the Austrian competition authorities – may impose a fine of up to 10% of the undertaking's (group) turnover in the preceding year. In practice, however, the fines for the violation of the standstill obligation in Austria have been much lower; in most cases ranging from EUR 15,000 to EUR 150,000 (in an exceptional and singular case, a fine of EUR 1.5 million was imposed for gun jumping).
The summary decisions in the two cases have not been published yet. However, the fine against Stahl Lux is one of the highest fines for gun jumping in Austria to date.
1 COMPAREX Facts & Figures 2016/17
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