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03 February 2005
The Ministry of Justice has published the draft Cartel Act 2005 and amendments to the Competition Act, which are scheduled to enter into force on January 1 2006.(1) The drafts contain few unexpected but several practically relevant amendments.
With regard to the prohibition of cartels and the abuse of a dominant market position, the provisions of the old act have been regrouped and amended to reflect EU cartel legislation, in particular Articles 81 and 82 of the EC Treaty and EU Regulation 1/2003 on the implementation of the competition rules. In particular, the special rules on vertical agreements have been eliminated from the Austrian act. Further amendments include:
In addition, some interesting amendments have been proposed regarding merger notifications (Section 7 of the draft).
The definition of a 'merger' has been broadened to cover joint ventures having a coordinating effect. However, the thresholds defining which mergers need to be notified have been slightly amended: the first two thresholds (global joint turnover of €300 million and national joint turnover of €15 million) remain unchanged, while the third threshold, which now requires that at least two undertakings have a worldwide turnover of more than €3 million, has been slightly increased.
More interesting is an exception that excludes mergers from the obligation to notify if the undertakings concerned had, in the preceding business year, turnovers as follows: (i) only one undertaking turned over, in Austria, more than €3 million; and (ii) the remaining undertakings had a combined global turnover of not more than €15 million. For example, a merger that would not need to be notified could involve a multinational undertaking with an Austrian turnover exceeding €3 million buying a small undertaking with no or minimal turnover in Austria and a global turnover of not more than €15 million.
It is proposed that in future, notifications shall be filed with the Federal Cartel Authority rather than with the Cartel Court. This may reduce the usual time period necessary for clearance. However, many procedural questions remain unclear and the administrative practices of the authority remain to be seen.
The court fees for significantly increased by the draft act. Instead of the current fee of €75, the Federal Cartel Authority may charge a fee of €1,000 and the court may charge a fee of up to €30,000. However, under the new system the court would only be involved in a merger if a full Phase II investigation is necessary.
These amendments so far are only in draft and the bill is now open to public discussion. Comments may be filed with the Ministry of Justice until February 25 2005. Such comments may trigger further amendments and the act will only enter into force after the bill has been approved by both Houses of Parliament.
For further information on this topic please contact Dieter Hauck or Ruth Rosenberger at Preslmayr Attorneys at Law by telephone (+431 533 16 95) or by fax (+431 535 56 86) or by email (firstname.lastname@example.org or email@example.com).
(1) Available at www.justiz.gv.at/gesetzesentwuerfe.
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