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11 September 2003
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.
Among other things, a merger must be notified under the Cartel Law in the event of:
The turnover(1) thresholds for a mandatory premerger notification are:
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.
The FCA's form must be completed fully only if:
If none of these criteria is met, a notification in short form will suffice.
The existence of an affected market is assumed if:
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:
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@example.com or firstname.lastname@example.org).
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