One of the central tasks of the Federal Competition Authority is to examine notifiable mergers to ensure they comply with competition law. This means investigating whether the planned merger will bring about or strengthen market dominance.
What is a merger?
The following are regarded as mergers within the meaning of the Cartel Act:
- 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%,
- the effecting of equality of at least half of the members of the Board or the supervisory boards of two or more companies,
- 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 registered to the Federal Competition Authority. A merger has to be registered only if the turnover thresholds are exceeded.
The thresholds are defined in Competition Law:
Therefore, mergers have to be registered if the parties have achieved the following turnover in the last financial year before the merger:
- worldwide, a total of more than € 300 million,
- domestically, a total of more than € 30 million and
- at least two companies each more than five million euros worldwide.
Excluded from this provision are mergers where the parties achieved the following revenue totals in the last financial year before the merger:
- only one of the parties, domestically, more than five million euros and
- the other parties involved, worldwide, a total of no more than € 30 million.
Notifications of mergers have to be submitted in four identical (physical) copies. They can be filed either by post, or in person during office hours (Mon-Thu 8:00-14:00, Fri 8:00-12:00) at the office (1st floor, room C1b), or with the secretary (1st floor, room A8) of the Federal Competition Authority.
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 € 3,500.
The payment of the notification fee of 3,500 € must be made solely by cash at the bank account of the BAWAG P.S.K.:
IBAN: AT32 0100 0000 0508 0070, BIC: BUNDATWW
in the name of "Bundeswettbewerbsbehörde"
Payment must be made at no expense to the BWB. On the deposit or transfer slip, the word "Anmeldegebühr" and the name of the applicant must be indicated. The original deposit slip is required as evidence of the deposit.
If it is unclear whether a merger has to be registered, or if the merger is complex or market share is very high after the merger, the parties involved are advised to contact the Federal Competition Authority in advance of the notification with the objective of facilitating further proceedings. It is in the interest of the applicant and BWB that merger control proceedings are handled quickly and smoothly.
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
companies or individuals whose legal or economic interests are affected by the merger
- 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 such a statement has to inform the other legal party without delay. Nevertheless it is highly recommended that the complaining company submits the statements to the two official parties simultaneously.
Requests for examination
The Federal Competition Authority applies for examination of the merger (Phase II) at the Cartel Court if by that time,
- the Federal Competition Authority holds the view that the merger causes
competition infringements and during or before Phase I no appropriate measures to
eliminate these concerns were found and arranged, or
influence of the merger on competitive matters cannot be evaluated by the BWB
during the four-week period (e.g. because of the absence of relevant assessment
informationor because of the existence of complex competitive issues)
Even in Phase II of the process, the Federal Competition Authority is prepared to speak with the applicants about possible remedies to competition problems. These remedies can lead to a withdrawal of the request for examination by the Federal Competition Authority.
Under the Cartel Act and the Competition Act, the Federal Competition Authority has to publish certain information on its website. This relates to the disclosure of mergers registered with the Federal Competition Authority, applications of official parties (application for examination of a merger in the proceedings before the Cartel Court, the requests for removal, detection or declaration of commitments to be binding in the cartel and abuse proceeding) and decisions of the Cartel Court and the Supreme Cartel Court.
The Federal Competition Authority will endeavour to update this statutory obligation.