Competition

Mergers must be notified to the Federal Competition Authority.

The following fall under the definition of a merger in accordance with Section 7 KartG 2005:

• Acquisition of all or most of a company by a trader, in particular as a result of a merger or transformation
• Acquisition by a trader of the rights to the business premises of another trader by way of transfer or operating agreements
• Indirect or direct acquisition by a trader of shares in another company where that company is a trader, both when this results in the value of their holding meeting or exceeding 25 percent and again when this results in the value of their holding meeting or exceeding 50 percent
• Actions resulting in at least half of the management or supervisory boards of two or more companies being comprised of the same members, where those companies are traders
• Any other amalgamation of companies resulting in a trader directly or indirectly exercising a dominant influence on another company
• Any founding of a joint venture that will eventually fulfil all the functions of an autonomous economic entity

If all of the companies involved belong to a single corporate group, the transaction is not regarded as a merger.

Legal bases

• section 7 of the Kartellgesetz (KartG)
• section 15 of the Aktiengesetz (AktG)
• section 115 of the Gesetz über Gesellschaften mit beschränkter Haftung (GmbHG)

Mergers must be notified to the Federal Competition Authority if, in the financial year prior to the merger:

• the total global sales revenue of the companies involved exceeded 300 million Euro;
• the total domestic sales revenue of the companies involved exceeded 30 million Euro, of which at least two companies each more than one million Euro; and
• at least two of the companies achieved a global sales revenue exceeding five million Euro.

The reporting obligation does not apply if, in the financial year preceding the merger:

• only one of the companies involved achieved a domestic sales revenue of more than five million Euro; and
• the total global sales revenue of the remaining companies did not exceed 30 million Euro.

In the case of (mergers of media companies, the sales revenues of media companies and services must be multiplied by 200, and the sales revenues of auxiliary companies to the media industry multiplied by 20.

Mergers to which these turnover thresholds do not apply must nevertheless be notified to the Federal Competition Authority if:

• the total global sales revenue of the companies involved exceeded 300 million Euro in the financial year preceding the merger;
• the total domestic sales revenue of the companies involved exceeded 15 million Euro in the financial year preceding the merger;
• the value of the consideration for the merger exceeds 200 million Euro; and
• the company being acquired conducts a substantial portion of its activities within Austria.

Calculating sales revenue

Sales revenue should be calculated using the following principles:

Associated companies are considered to be a single company. Revenue from deliveries and services between these companies (internal sales) should not be included in the calculation.

In the case of banking institutions, instead of sales revenue the sum of the following revenue items is used:

• interest revenue and similar
• revenue from shares, other equity and non-fixed-rate securities
• revenue from investments and revenue from shares in associated companies
• commission revenue
• net revenue from financial transactions
• other operating revenues

In the case of insurance companies, premium revenue is used instead of sales revenue.

Legal bases

Sections 7, 8, 9 and 22 of the Kartellgesetz (KartG)

Various provisions of the Kartellgesetz and the Wettbewerbsgesetz provide for publication obligations and obligations to provide information on the part of the Federal Competition Authority and the Antitrust Court. This concerns the publication of mergers notified to the Federal Competition Authority, information about any requests submitted by the parties representing the public and decisions of the Antitrust Court.

The relevant announcements and publications can be found on the following pages of the Federal Competition Authority website:

• Mergers (→ BWB)^{German text}
• Cartels and market power abuse (→ BWB)^{German text}

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The following business practices give rise to a right to seek an injunction and, in case of culpability, to compensation in accordance with the Austrian Act Against Unfair Competition (UWG):

• Offences listed in the annex to the UWG as examples of unfair practices: these include false claims by a trader that they are party to a code of conduct and the use of trust marks, quality labels or similar without the corresponding authorisation.

If an offence is not explicitly listed in the annex, it is necessary to examine whether the business practice in question can be deemed aggressive or misleading.

• Aggressive business practices: aggressive business practices are practices that significantly impair the freedom of market participants to act or make decisions in relation to a product as a result of harassment, coercion or undue influence, and that may cause such participants to make a commercial decision that they would not have otherwise made.
• Misleading business practices: misleading business practices include providing untrue information and practices otherwise intended to mislead a market participant about one or several aspects of a product with the aim of causing them to make a commercial decision that they would not have otherwise made. This applies to both goods and services. Misleading information may be provided, for example, about the primary features or availability of a product, the price, or the person or attributes of the trader such as their identity, competence or distinctions.

If none of the offences listed in the annex have been committed, and if the business practice is neither aggressive nor misleading, it is necessary to examine whether it may nonetheless be unfair:

• Anyone who applies any other kind of unfair business practice or other unfair practice in commercial trade with the intention of having a non-negligible influence on competition to the detriment of other traders, or who applies an unfair business practice that does not meet professional diligence requirements and, with respect to the relevant product, is intended to significantly influence the economic behaviour of the average consumer who is being affected or targeted, may be subject to an injunction and, in case of culpability, liable to pay compensation.

The legislation against unfair competition has been further developed and shaped by case-law. The following practices are regarded as unfair:

• Customer targeting whereby the customer is prevented fully or partly from exercising free will, for example as a result of deceit, physical or psychological coercion, manipulation and exploitation of emotions to such an extent that it is no longer guaranteed that the customer will be able to make a rational, critical decision based on objective considerations. Advertising measures must be recognisable as such.
• Restraint of competition which is aimed at preventing a competitor from selling or getting a fair price for their product, e.g. restraint of sales, advertising or procurement by means, for example, of targeted solicitation of customers in the immediate vicinity of a competitor, planned distribution of advertising flyers in front of a competitor's premises, poaching of employees by reprehensible means.
• Exploitation of third-party services via imitation, in particular by reprehensible means (e.g. taking over, to a lesser or greater extent, the results of another's work without having made any contribution to that work, avoidable deception of origin).
• Breach of law: Anyone who attempts to breach legal rules in order to gain an unfair advantage over law-abiding competitors is considered to be in breach of the Gesetz gegen den Unlauteren Wettbewerb (UWG). The breach of law must objectively have been intended to have a non-negligible impact on competition to the detriment of the law-abiding entrepreneur, e.g. breaches of trade regulations or of other standards applicable to commercial trade (e.g. opening times, price marking rules). It is irrelevant whether the violated legal provision has a competition-regulating character.
• Injurious claims against another company: anyone who states or disseminates facts about another company, the owner or director of that company or the goods or services provided by that company that may damage the company's operations or the credit rating of its owner for the purpose of gaining a competitive advantage is obliged to pay compensation to the injured party, provided that there is no evidence of the truth of the alleged facts. In addition to a claim for compensation, the injured party may also issue an injunction. It is also possible to take legal action requiring the infringing party to publish a retraction statement.
• Comparative advertising is usually permitted, unless it is misleading or contains sweeping, defamatory or libellous statements.

The announcement of clearance sales due to dissolution of a business or relocation of its premises must first be notified to the responsible for the location of the sold out district administrative authority and be approved by her. Clearance sales due to remodelling or renovation (without dissolution of the business or relocation of its premises) do not require prior approval. Clearance sales due to a natural event such as flooding or fire must also be notified to the responsible district administrative authority in advance. Detailed information about "Retail – Exceptional clearance sales"^{German text} can also be found at USP.gv.at.