The Austrian law (Cartel Act Sec 17) seems clear in that a merger needing notification may only be "implemented" after clearance, i.e. the Official Parties have waived their right to move for a full investigation in the Court or such motion was not filed within the deadline provided by law or the Court has decided in favour of implementation. However, there is no definition of "implementation" in the law as of today. Doctrine saw a lively discussion, whether "implementation" was already the mere possibility to influence behavior of the target or only – more narrowly and normally later – the actual exercise of such influence. Case law in that respect so far was provided by the Cartel Court, who followed the actual influence line, but not by the Supreme Court yet. Now the Supreme Court has ruled and clarified the matter - differently.1
After extensively discussing literature as to Austrian and European merger control, the Austrian Supreme Court clearly stated that the mere possibility to influence competitive behavior of the target is sufficient to be regarded as implementation of a merger. Reference was also made to older versions of the Austrian law and to the objective of the prohibition to implement: effective merger control shall be guaranteed and not be compromised by facts made, which could only with difficulties or not at all be reversed later. Further, Austrian law should be also construed in accordance with European law.
However – a blessing in disguise – although that was the tough ruling by the Supreme Court, in the case at hand Defendant could evade a fine. Though the infringement was established, the Supreme Court, in that point confirming the Cartel Court, did not see the actions to be punishable.2 In general, the court could waive the fine, if the fault of the perpetrator and the consequences of the action are insignificant and, additionally, there is no need to impose a fine in order to prevent the perpetrator or others to commit the same infringement. The Supreme Court established a quite special situation, where a rather old offer for a takeover was quite surprisingly accepted more than a year later, the meeting of thresholds was very difficult to establish and in fact the merger was voluntarily notified only weeks after the infringing actions while the purchaser carefully avoided to take actions of control. Finally, the Austrian Official Parties did not identify any competitive difficulties with the economically rather insignificant merger and there were no identifiable consequences of the late notification.
The lesson to learn for enterprises contemplating and/or effecting a merger notifiable in Austria – be aware of the consideration threshold introduced recently3 - is to take the prohibition to implement even more serious. In order to get away with gun jumping in Austria once caught, you have to be very, very lucky.
1 Supreme Court 7.12.2017, 16 Ok 2/17f.
2 Making reference by analogy to (earlier) Sec 42 Criminal Code and (presently) Sec 191 Criminal Procedural Code.
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