Merger control in an Austrian business acquisition: turnover thresholds, transaction value, BWB notification, review periods and the standstill obligation.
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In a business acquisition, Austrian merger control is not determined by the purchase price alone. The turnover of the undertakings concerned is the starting point. For certain transactions, the transaction value may also matter if the target is active to a significant extent in Austria.
This article structures the Austrian merger-control review for deal planning: what constitutes a merger, turnover thresholds, transaction value, notification, review periods and the standstill obligation. It does not replace a case-specific analysis of the markets, the group structure or European jurisdiction.
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Review the parties, domestic turnover, worldwide turnover and transaction value by reference to the last financial years.
Assign the calculation to the relevant undertakings and financial years. Treat notification, the notification fee, the four-week period and the standstill obligation as separate closing workstreams.
Collect the turnover for the last financial year, the target's domestic activity and the transaction value. Then check the exception where only one undertaking has more than five million euros domestic turnover and the remaining undertakings have no more than 30 million euros worldwide in total.
Section 7 of the Austrian Cartel Act covers several forms of combination. These include acquiring a business or a substantial part of it, certain share acquisitions reaching 25 or 50 per cent, and other arrangements that create controlling influence. A full-function joint venture can also qualify as a merger.
The parties should therefore identify the transaction and the undertakings concerned before calculating turnover. An intra-group reorganisation requires a separate classification. Under section 7(4), an arrangement within the same group is generally not a merger. Economic control may also differ from the label used in the documents.
Under section 9(1) of the Cartel Act, the undertakings concerned must have achieved more than EUR 300 million worldwide in aggregate and more than EUR 30 million in Austria in the last financial year before the merger. At least two undertakings must also have achieved more than EUR 5 million worldwide each.
The calculation is made at the level of the relevant groups. The turnover schedule should therefore show the group perimeter, the financial years and the allocation of revenues. Media mergers have special multiplication rules. For an ordinary business acquisition, the general threshold review is the starting point.
Section 9(2) excludes a merger where only one undertaking has more than EUR 5 million domestic turnover and the other undertakings have no more than EUR 30 million worldwide in total. This exception requires a documented turnover schedule rather than a rough estimate.
The BWB identifies an additional notification test where the undertakings concerned have more than EUR 300 million worldwide turnover in aggregate, more than EUR 15 million domestic turnover and a transaction value exceeding EUR 200 million. The undertaking to be acquired must also be active to a significant extent in Austria.
This test captures transactions where the target's turnover may not fully reflect the economic importance of the deal. Depending on the structure, transaction value may include more than the fixed purchase price, including additional consideration and economically linked elements. The documents must be reviewed for the concrete calculation.
The target's Austrian activity needs its own factual analysis. Austrian entities, users, supply relationships or another economic presence can have different significance depending on the market and business model. Where the position is unclear, the BWB recommends early contact with sufficiently detailed information.
Any undertaking concerned may notify the merger. The notification must set out the merger and the relevant competitive circumstances in a complete manner. This includes ownership, group links, turnover by goods and services, market shares and the general market structure.
The BWB publishes the notification and its essential details. Undertakings whose legal or economic interests are affected may submit written observations within 14 days of publication. The relevant markets and data basis should therefore be organised before filing.
The BWB identifies the ERV system with code Z008239 for notifications. Technical filing requirements and supporting documents form part of the preparation. Pre-notification contact may be useful for complex markets, high market shares or uncertainty about the threshold calculation. The Federal Competition Authority publishes the current threshold guidance; the applicable Cartel Act can be retrieved through the Austrian legal information system.
The BWB currently states a flat notification fee of EUR 6,000. It links the start of the review period to receipt of the notification and payment of the fee. The filing and payment steps should therefore have named owners in the transaction timetable.
Under section 11(1) of the Cartel Act, the official parties may apply to the Cartel Court for a review within four weeks after the notification reaches the BWB. Without an application, the first phase ends when that period expires or earlier if the official parties expressly waive an application. Media mergers may be subject to special extensions.
If an application is made, the Cartel Court conducts the second phase. Under section 14(1), it may generally prohibit the merger only within five months after the application reaches the court. Financing and completion planning should reflect this statutory structure rather than assume a short clearance period.
Notification does not permit immediate completion. Under section 17 of the Cartel Act, a notifiable merger may be implemented only after the official parties have waived an application or the application period has expired without an application. If an application is made, the parties must also await the outcome of the review proceedings.
The standstill obligation concerns implementation of control, not only a registration entry. Steps that give the buyer controlling influence or economic control before clearance require separate review. Operational preparation and actual implementation should be documented as distinct actions.
The agreement should contain a clear clearance condition, information duties and a process for delay. Information exchange during due diligence is governed by the separate competition-law limits explained in the article on gun-jumping and information exchange.
The review becomes verifiable when turnover, transaction value and procedure are evidenced separately.
| Review field | Core question | Evidence |
|---|---|---|
| Merger What control is being acquired? | Classify acquisition, shareholding, influence or joint venture | SPA, ownership chart and governance rights |
| Turnover Are section 9 thresholds met? | Calculate worldwide and domestic turnover by group and financial year | Group turnover schedule |
| Transaction value Does the additional test apply? | Review value, domestic turnover and target activity together | Purchase-price calculation and market material |
| Procedure When may completion occur? | Plan fee, notification, four-week period and second phase | ERV record and timetable |
| Implementation What remains restricted before clearance? | Separate signing, preparation and completion | Clearance condition and implementation log |
The BWB can be contacted before notification where the position is unclear. The published threshold guidance and the Cartel Act should be checked in the version applicable to the transaction.
Section 9(1) generally requires more than EUR 300 million worldwide aggregate turnover, more than EUR 30 million domestic turnover and more than EUR 5 million worldwide turnover for at least two undertakings each. The exception in section 9(2) must also be checked.
The BWB identifies an additional test at more than EUR 300 million worldwide aggregate turnover, more than EUR 15 million domestic turnover, transaction value above EUR 200 million and significant activity of the target in Austria. The calculation depends on the transaction structure.
Under section 11(1), the official parties may apply to the Cartel Court within four weeks after the notification reaches the BWB. Special rules may apply to media mergers.
No. Section 17 imposes a standstill until the application period has expired or the further review has been completed in accordance with the Act. Signing and completion should be planned separately.
The BWB currently states a flat notification fee of EUR 6,000. The amount, payment route and filing requirements should be checked again for the specific filing.
Assess information flow and implementation before clearance.
Structure public-law reviews in a business acquisition.
Structure clearance conditions in the SPA.
Record documents, review fields and red flags.
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