Important amendments of the Austrian Cartel Act ("Kartellgesetz") and the Austrian Competition Act ("Wettbewerbsgesetz") were adopted on 24 April 2017. Importantly, the amendments introduce an additional notification threshold based on the value of the transaction. The amendments also introduce changes to public enforcement rules and implement the EU Damages Directive in Austrian law.
1. Merger Control
The amendments to the Austrian Cartel Act introduce an additional notification threshold, which is based on value of a transaction. As in Germany, the aim is to catch in particular acquisitions of start-up companies in the digital economy where the target does not generate a large turnover but may nevertheless have a competitively significant position in the market.
Under the existing rules, which remain applicable, notification is required when the following three cumulative turnover criteria are met by the undertakings concerned in the last financial year preceding the concentration:
- the combined worldwide turnover of the undertakings concerned exceeded € 300 million;
- the combined Austrian turnover of the undertakings concerned exceeded € 30 million; and
- each of at least two undertakings concerned achieved a worldwide turnover exceeding € 5 million.
However, even if the above three turnover thresholds are met, an exemption from the notification requirement applies if:
- only one of the undertakings concerned achieved turnover in Austria exceeding € 5 million; and
- the other undertakings concerned achieved a combined worldwide turnover of € 30 million or less.
Under the new notification threshold, a notification will also be required if the following four cumulative conditions are met:
- the combined worldwide turnover of the undertakings concerned exceeds € 300 million;
- the combined Austrian turnover of the undertakings concerned exceeds € 15 million;
- the value of the "consideration" received by the seller, i.e., the purchase price and the value of any assets and other monetary values received by the seller for the transaction, exceeds € 200 million; and
- the target undertaking is active in Austria to a significant extent.
According to the explanatory comments accompanying the new legislation, the requirement of significant activity of the target in Austria may be met if, for example, the target has a subsidiary or branch office in Austria, or if the services provided by the target are widely used in Austria (e.g. high frequency of web traffic). However, the explanatory comments offer only limited guidance, so that difficulties in making the assessment can be expected in practice. The new notification threshold will become effective on 1 November 2017.
Furthermore, the filing fee for merger notifications has been increased from € 1,500 to € 3,500 as of 25 April 2017.
2. Public enforcement rules
The amendments provide the FCA with additional enforcement powers for antitrust investigations concerning inspections at the premises of undertakings ("dawn raids"). Under the new legislation, which entered into force on 25 April 2017, the FCA is now also empowered to access and inspect any electronic documents which may be accessed at or from the company's premises. The Austrian Cartel Court is authorized to impose fines for failure to grant access to electronic data that is accessible from the premises covered by the search warrant.
The rights and obligations of the FCA to report on pending as well as closed cases has been extended. Until recently, decisions of the Austrian Cartel Court made upon request by the FCA were published only if the court had ruled that there was an infringement of competition law and imposed a fine on the defendant. Under the new regime, all decisions, e.g. cease and desist orders as well as negative decisions on procedure or on the merits, will also be published as soon as they are final. In addition, the FCA will have to publish all requests submitted to the court to initiate proceedings against an alleged infringer.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.