Mergers - Better Safe than Sorry

Notification of a Merger
Forms
Content

The Federal Competition Authority (FCA) recently published guidelines for the notification of mergers. It is advisable to follow the FCA's form as closely as possible or to have very good reasons for not doing so.

Notification of a Merger

Among other things, a merger must be notified under the Cartel Law in the event of:

• the direct or indirect acquisition of an undertaking, in whole or in part, by another undertaking;

• arrangements that change the composition of at least 50% of the company's managing body;

• any other transaction that creates a controlling influence; or

• a joint venture that may constitute a merger.

The turnover(1) thresholds for a mandatory premerger notification are:

• joint worldwide turnover of €300 million;

• joint Austrian turnover of €15 million; and

• at least two undertakings concerned worldwide turnover of €2 million.
  

Special conditions apply to media mergers, according to which the turnover is multiplied by 200, effectively lowering the threshold and thus catching more transactions.

There is no explicit separate de minimis (ie, minimal) rule for the Austrian turnover of each party. However, in special circumstances and where no potential appreciable effect is possible in Austria, a merger does not fall under the regime. The relevant cases are unclear, most having been decided by the Cartel Court at first instance rather than the Supreme Court.

Forms

The FCA's form must be completed fully only if:

• at least two of the participating undertakings have an Austrian turnover exceeding €1 million each;

• the merger is media related; or

• there are one or more affected markets.

If none of these criteria is met, a notification in short form will suffice.

The existence of an affected market is assumed if:

• the transaction results in the creation or strengthening of market dominance, or the preconditions for the presumption in Article 34 of the Cartel Act are met (eg, where an undertaking has a market share of (i) at least 30 %; (ii) more than 5% and is exposed to competition from a maximum of two undertakings; or (iii) more than 5% and is one of the four largest undertakings that together have a market share of at least 80%);

• two participating undertakings are active in the same product market and the transaction results in a combined market share of at least 15%; or

• certain vertical overlaps exist.
  

Content

The following information is required where a notification in short form is deemed insufficient, demonstrating the augmented burden that is placed on the participating undertakings in such cases:

• best estimates of their market shares, as well as their connected undertakings and competitors in the three business years preceding the transaction;

• details of their five main competitors, customers and suppliers, plus imports and exports, transport costs and other market constraints;

• descriptions of the target market, as well as neighbouring, upstream and downstream markets; and

• details of distribution and cooperation agreements, market entries and relevant predictable market developments.
  

The relevant form should be followed as closely as possible. Otherwise, the FCA may send it back to the parties in question, requesting additional information with the friendly hint that notification will be regarded as being incomplete if no further information is provided. In such cases the four-week phase one period will not be extended, but the FCA may move for an intensive phase two investigation with a maximum duration of five months from notification, which can be extended if the court calls for the notification to be amended or supplemented.

For further information on this topic please contact Dieter Hauck or Ruth Rosenberger at Preslmayr & Partners by telephone (+431 533 16 95) or by fax (+431 535 56 86) or by email ([email protected] or[email protected]).

Endnotes

(1) That is, turnover for the business year preceding the transaction.