Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

Where an examination has been sought, the Cartel Court will eventually issue a decision declaring either that no concentration exists, that the concentration will create or strengthen a dominant position and is thus prohibited, or that the concentration is not prohibited.
  Even where a concentration may create or strengthen a dominant position, the Cartel Court may nevertheless authorize it where …

Control criteria

A concentration is defined in Section 7 of the Cartel Act as the acquisition of an undertaking, in whole or in part, whether by merger, acquisition of shares, contract or any other manner of obtaining a controlling influence over another business. The acquisition of shares is deemed a concentration if an interest of 25% or more or of 50% or more is thereby achieved (Section 7). Likewise, where at least half of the members of the managing executive board or supervisory board are identical there is a concentration. Finally, a joint venture may be considered as a concentration pursuant to Section 7 when it fulfills all the functions of an independent economic entity on a lasting basis.

If however all the undertakings belong to one group, there is no concentration.

Concept of concentration

The 2017 amendment added an alternative size-of-transaction test (B) to the existing turnover test (for which the 2021 amendment introduced an additional turnover threshold) (A). Since January 2022, an application for registration with the Cartel Court must be made either:

- (A) where, cumulatively in the prior fiscal year, the undertakings involved have either a combined worldwide turnover of EUR 300 million, a combined national turnover of EUR 30 million of which at least two undertakings involved have achieved more than EUR 1 million (this additional threshold wad introduced by KaWeRÄG 2021), and at least two undertakings involved each have a worldwide turnover of EUR 5 million.

However, even where these thresholds are met, notification is not required if only one of the undertakings concerned has achieved, on the Austrian market, a turnover exceeding EUR 5 million, and the combined aggregate worldwide turnover of the other undertakings concerned does not exceed EUR 30 million.

The undertakings concerned for thresholds purposes are, in any event, the acquirer and the target as well as all entities that are affiliated; the seller only qualifies as “undertaking concerned” if he continues to hold an interest in the target of more than 25%.

- (B) where the undertakings involved have (i) a combined worldwide turnover of EUR 300 million, and (ii) a combined national turnover of EUR 15 million, and (iii) the value of consideration is above EUR 200 million and (iv) the target is to a significant degree active in Austria. The new test aims at catching high-value transactions carried out in digital markets where the acquired business has a turnover too low to come within the ambit of control but a very high growth potential.

On 9 July 2018, the FCA and the German Federal Cartel Office (FCO) published a joint guidance paper which defines their approach towards this new size-of-transaction test.

Thresholds

Where an examination has been sought, the Cartel Court will eventually issue a decision declaring either that no concentration exists, that the concentration will create or strengthen a dominant position and is thus prohibited, or that the concentration is not prohibited.

  Even where a concentration may create or strengthen a dominant position, the Cartel Court may nevertheless authorize it where the advantages to competition that will result from the concentration may outweigh the disadvantages, or the concentration is necessary to improve the international competitiveness of the businesses involved and is justified by national economic interest (Section 12(2) of the Cartel Act).

A concentration comes under the heading of a media concentration if at least two undertakings involved are media businesses or media services within the meaning of Section 1 of the Media Act, media support businesses, or businesses that directly or indirectly hold an interest of at least 25% in a media business, media service, or media support business. For purposes of the Cartel Act, media businesses include publishing houses, printers, advertising brokers, large-scale distributors of media products and film rental businesses. If only one of the businesses involved in the concentration is a publishing house, printer or advertising broker, and one other business involved in the concentration holds an interest of at least 25% in a media business, media service or media support business, the concentration will likewise be deemed a media concentration.

  For purposes of determining whether a media business satisfies the above thresholds, for which it is required to apply for registration with the Cartel Court, the actual turnover proceeds of a media business or media service are multiplied by 200, and the turnover proceeds of a media support business are multiplied by 20. The Cartel Act requires the Cartel Court to prohibit a media concentration where the concentration is expected to impair media diversity. Nevertheless, even where application of the usual standards would require that the concentration be prohibited, the Cartel Court may authorize a media concentration where necessary to improve or preserve the international competitiveness of the businesses involved and the concentration is justified by national economic interest.

Global Competition Law

22. Control criteria

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Les notions juridiques connexes

22. Control criteria

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise