The government bill of the Cartel and Competition Law Amendment Act 2021 ("KaWeRÄG") was passed in the National Council on 8 July 2021. From a merger control point of view, a significant change is the introduction of a "second domestic turnover threshold".
The amendment to the Austrian Cartel Act ("ACA") focuses on the transposition of the EU Directive on empowering the competition authorities of the member states (ECN+ Directive) into national law. At the same time, the KaWeRÄG 2021 provides for an adaptation to new developments in economic life.
Second Domestic Threshold
Many transactions have so far been notified in Austria, even if the target companies only achieved negligible sales of a few thousand euros in Austria (or no sales at all). With the introduction of the second domestic turnover threshold in § 9 para. 1 no. 2 ACA, the Federal Competition Authority assumes that the number of concentrations is likely to decrease by approx. 44%. In the future, concentrations will therefore require notification if (in addition to the previously applicable requirements) at least two of the undertakings concerned each generated more than EUR 1 million in Austria in the last business year. Irrespective of this, however, a transaction may also require notification based on the transaction value threshold of Section § 9 para 4 ACA (in particular with a transaction value of at least EUR 200 million) as well as the multiplier rule of § 9 para 3 ACA applicable to media mergers.
The second domestic turnover threshold is applicable to mergers notified after 31 December 2021. Particularly for M&A transactions with a scheduled closing for the end of 2021 or the beginning of 2022, it will therefore be necessary to carefully examine, if under the newly introduced second domestic turnover threshold, a notification requirement could be ruled out and which steps should be followed for legal certainty reasons, respectively.
If you have any questions, we invite you to contact us. We look forward to advising you.