Revised joint guidance on transaction value thresholds in Austria and Germany

On 23 December 2021, the Austrian Federal Competition Authority (Bundeswettbewerbsbehörde, "BWB") and the German Federal Cartel Office (Bundeskartellamt, "BKartA") published their revised joint guidance on the application of their respective transaction value thresholds for mandatory merger notifications ("Guidelines")[1].

The revised Guidelines, which were initially published in July 2018, aim to provide further guidance and examples on how to interpret the then newly introduced transaction value thresholds under Austrian and German merger control law.

To recap briefly, the respective transaction value thresholds were designed to expand the scope of merger review to include transactions involving companies that do not generate a particularly high turnover at the time of the transaction but should nevertheless be scrutinised due to their competitive potential on the relevant markets (e.g. Facebook acquiring Instagram).[2] According to the BWB and the BKartA, such transactions may pose a threat to innovation and competition. In particular in the digital economy, as it is in those markets that killer acquisitions[3]are most likely to occur.

To this end, transaction value thresholds differ from the conventional turnover-based criteria, which remain applicable in Austria and Germany[4], as they not only build on the turnover of the parties to the merger but also on the transaction value and (significant) domestic activities of the target.

What has changed?

The transaction value threshold tests set out in the Austrian and German merger control regime[5] remain unchanged, but the Guidelines have seen changes limited in number but of practical relevance in interpreting the respective criteria (in particular adjustments and clarifications with regard to substantial domestic operations and recent case law):

• The revised Guidelines now contain adjusted thresholds used to determine the significance of the domestic operations of the target. Accordingly, the respective authoritywill, in principle, find nosignificance of domestic operations if the turnover generated by the target remains below EUR 1 million[6] (previously EUR 500,000) in Austria or below EUR 17.5 million[7] (previously EUR 5 million) in Germany, provided such turnover adequately reflects the target's market position and competitive potential.

• With regard to Austria and based on a recent decision of the Austrian Cartel Court (Salesforce/Tableau)[8], the Guidelines further clarify that such significance of domestic activity should be assumed in cases where the target's market share in a competitively relevant segment exceeds 10%.

• Finally, in connection with the guidance on the assessment of local nexus, para. 72 of the Guidelines now also contains a reference to a fairly recent Facebook/GIPHY decision[9] adopted by the BWB, in which Facebook was fined EUR 9.6 million for gun jumping.

Conclusion

Reliable thresholds are significant for merging parties. They should be able to plan their transaction and know with certainty whether or not they must undergo a merger control review. With this in mind, the newly revised Guidelines will continue to play an important role in the application of the transaction value threshold test in Austria and Germany.

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[1]     See Guidance on Transaction Value Thresholds for Mandatory Pre-merger Notification (Section 35(1a) GWB and Section 9 (4) KartG), Bundeskartellamt and Bundeswettberebsbehörde from July 2018: https://www.bwb.gv.at/fileadmin/user_upload/Downloads/standpunkte/2018-07_Guidance_Transaction_Value_Thresholds.pdf (last accessed: 13.1.2022).

[2]     Ibid, par. 3 and 4.

[3]     Cases where market-leading companies acquire emerging competitors in their early development stage with the aim to change or discontinue their activity.

[4]     Transaction value thresholds are complementary to the primary turnover thresholds.

[5]     Austria: The undertakings concerned i) achieved a combined aggregate worldwide turnover of more than EUR 300 million and ii) aggregate domestic turnover of more than EUR 15 million  in the last business year preceding the transaction, iii) the value of the transaction is more than EUR 200 million, and iv) the undertaking to be acquired is active to a large extent in Austria; Germany: In the last business year preceding the concentration i) the combined aggregate worldwide turnover of all the undertakings concerned was more than EUR 500 million, ii) the domestic turnover of one undertaking concerned was more than EUR 50 million and iii) neither the target nor any other undertaking concerned achieved a domestic turnover of more than EUR 17.5 million, iv) the consideration for the acquisition exceeds EUR 400 million, and v) the target has substantial operations in Germany.

[6]     Brought in line with the Austrian Cartel and Competition Law Amendment Act 2021 (Kartell- und Wettbewerbsrechts Änderungsgesetz 2021). Sec. 9 (1) no 2 Austrian Cartel Act effective as of 1 January 2022 stipulates: aggregate turnover of all undertakings concerned exceeding EUR 30 million, while at least two undertakings concerned with turnover of more than EUR 1 million in Austria. 

[7]     See the 10th amendment of the German Act against Restraint of Competition, which entered into force on 19 January 2021.

[8]     27 Kt 9/21g; available under edikte.justiz.gv.at.

[9]     See BWB’s report on its Facebook/GIPHY decision of 7/6/2021: https://www.bwb.gv.at/en/news/detail/austrian-federal-competition-authority-files-application-to-fine-facebook-for-failing-to-notify-giph (last accessed: 11/1/2022).