Cooperating with other companies can be an efficient way of responding to the current challenges posed by the coronavirus outbreak (e.g. cooperation in relation to home deliveries). However, if the companies are competitors or if the cooperation could otherwise lead to the disclosure or exchange of competitively sensitive information between competitors, antitrust rules have to be respected. In times of crisis, the contribution of the cooperation to the production and distribution of goods, on the one hand, and its effects on competition, on the other, must be weighed up. European and Austrian antitrust regulations offer a certain amount of room for manoeuvre in this respect. In particular, the Austrian Cartel Act allows for the possibility of an "exemption regulation" by the Federal Minister of Justice.
The crisis caused by COVID-19 poses a threat to the global economy and puts the survival of some companies at risk. Several countries, including Austria, allow in principle for an accelerated examination of transactions that are unproblematic under merger control law if waiting for the expiry of the regular review period would give rise to serious economic disadvantages. Other jurisdictions (e.g. EU, Germany) provide for exceptions to the standstill obligation in such cases. The acquisition of shares by a credit institution for the purpose of (a) restructuring a distressed company or (b) securing claims against a company, and – under certain conditions – (c) acquiring shares by a private equity firm, is exempt under certain conditions from the merger control notification requirement under Austrian law.
The assessment of the content of rescue mergers is also subject to special rules in Austria, at the EU level and to some extent in other EU member states. If, without the transaction, the company would exit the market anyway and the market shares would ultimately end up being acquired by the acquisition candidate, there would be a lack of causality between the reduction of competition in the relevant market(s) and the transaction. The so-called failing company defence has so far been handled extremely restrictively by the competition authorities. In the current situation, it can be assumed that competition authorities will be confronted with the failing company defence more frequently.
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