One of the central tasks of the Federal Competition Authority is examining notifiable mergers according to competition law. This means an inspection, of the planned merger and the ramifications on the market positions of the affected companies.
What is a merger?
Regarded as mergers within the meaning of the Carte Act are:
- the acquisition of a company or a substantial part of it, by an entrepreneur, especially by way of merger or conversion,
- the purchase of a right of an establishment by a contractor, for example by management agreements,
- the direct or indirect acquisition of shares in a company to reach an ownership interest of more than 25% or 50%,
- equality of at least half of the members of the Board or the supervisory boards,
- any other combination of companies where one company has dominant influence over another company.
- the creation of a joint venture performing on a lasting basis all the functions of an autonomous economic entity.
Quantitative threshold values
Not every merger has to be notified to the Austrian Competition Authority. A merger has to be notified only if the turnover thresholds is exceeded.
The thresholds are defined in Competition Law:
Therefore, mergers have to be notified if the parties reached the following revenues in the last financial year before the merger:
- worldwide total of more than 300 million €,
- domestic total of more than 30 million € and
- at least two companies in the world more than five million euros.
Exception: if in the last financial year before the merger the parties reached the following revenues:
- only one of the parties within the country more than five million euros and
- the other parties worldwide total of no more than 30 million €.
Notifications of mergers have to be submitted in in four identical (physical) copies. They can be filed either personally at office hours (Mon-Thu 8am-4pm, Fri 8am-2pm) at the registry (3rd floor, room 306) or with the secretary (3rd floor, room 304) of the Federal Competition Authority or by mail.
The time limit for the examination of the merger by the FCA is triggered by the receipt of the four copies of the notification and the payment of the flat-rate notification fee of 1,500 €.
The payment of the notification fee of 1,500 € must be made solely by cash at the bank account of the Postsparkasse:
Postsparkasse 5.080.070 bank code: 60.000
(IBAN: AT906000000005080070, BIC: OPSKATWW)
denominated in "Bundeswettbewerbsbehörde".
Payment must be made free of charge to the BWB. On the deposit or transfer slip the word "Anmeldegebühr" and the name of the applicant has to be indicated. The deposit is evidenced by the submission of the original deposit slip.
If it is unclear whether a merger has to be notified because the merger is complex or may possibly cause competition concerns, the parties involved are advised to contact the Federal Competition Authority in advance of the notification with the objective of facilitating further proceedings.
In many cases, early contact between the Competition Authority and the parties will help to avoid complex and costly procedures before the Cartel Court.
Rights of third parties in merger proceedings
Each entrepreneur whose legal or economic interests are affected by the concentration, may
- submit to the Federal Competition Authority and the Federal Cartel Prosecutor a written statement within 14 days from the publication of the application (Note: The intervening party has no right to a certain treatment of the expression).
- make written statements in judicial proceedings at the cartel court (Note: The intervening company has no party position).
The legal party that receives a statement has to inform the other legal party. Nevertheless it is highly recommended that the complaining company leave comments to the two official parties for practical reasons.
Requests for examination
The competition authority applies for examination of the merger (Phase II) at the Cartel Court if by that time,
- the Federal Competition Commission holds the view that the merger causes competition infringements and during or before Phase I no appropriate measures were found and arranged, or
- The influence of the merger on competitive matters cannot be evaluated the BWB during the four-week period (eg because of the absence of relevant assessment information, but also because of the existence of complex competitive issues)
Also in Phase II of the process, the Federal Competition Authority is prepared to speak with applicants about possible remedies to competition problems. These remedies can lead to a withdrawal of the request for review by the Federal Competition Authority.
The Federal Competition Authority has to publish special information on its website. This relates to the disclosure of cases notified to the Federal Competition Authority, applications of official parties (application for examination of a concentration in the proceedings before the Cartel Court, the requests for removal, detection or binding declaration of commitments in the cartel and abuse of process) and decisions of the Cartel Court and the Supreme Cartel Court.
The Federal Competition Authority is ready to update this statutory obligation.