Mergers

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

Mergers subject to a reporting obligation

Mergers must be notified to the Federal Competition Authority in accordance with Section 9, para. 1 of the KartG 2005 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.

Mergers not subject to para. 1 must nonetheless 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.

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.

Calculating sales revenue

Sales revenue should be calculated using the following principles (Section 22 of the KartG 2005):

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 basis

• Sections 7, 8, 9 and 22 of the Kartellgesetz 2005 (KartG 2005)
• Section 15 of the Aktiengesetz (AktG)
• Section 115 of the Gesetz über Gesellschaften mit beschränkter Haftung (GmbHG)