The Austrian Federal Competition Authority (FCA) has published a new and more detailed form for merger filings, which shows quite significant changes from the earlier version. The FCA has a long tradition in publishing such merger forms, which are not in all details determined by law but are of great importance for a smooth and successful merger filing.
Consequently, no Cartel law practitioner can ignore these forms as M&A projects are known for their tight timelines.
1. More information on markets
A market is considered an "affected" market if the business activities by Parties overlap and a combined market-share exceeds 15% horizontally or 25% vertically. Under the wide Austrian concept of "presumption of dominance" companies are caught, for example, if their market share is 30% or more on the relevant market. Further concepts of combined dominance apply. If a transaction leads to an affected market or the presumption of dominance criteria are met, FCA strongly expects the Parties to submit the following internal documents in addition to documents that have been expected so far:
- The most important internal documents, as produced by Parties concerning the preparation of the notified merger; this may include internal presentations or studies including alternative scenarios and financial business plans.
- All analysis, reports, studies, surveys, and comparable documents, which could be relevant for the competition analysis. This shall also include data which under normal course of business will be collected by the Parties or third parties and which are relevant for a quantitative economic analysis of the markets.
This demonstrates a clear interest of the FCA in internal documents addressed to the management bodies as well as documents discussing the economic objectives of the planned transaction including hypothetical alternatives to the transactions, financial assessments of possible synergies as well as business plans.
2. More information made public
Already in past practice, the FCA has published a short description of the transaction, the Parties, and the market segments in which the Target operates on the website. This information seems to be extending:
- Beside holding entities or special purpose vehicles (SPVs) also operating entities must be identified.
- Instead of broad economic sector definitions, now a specific NACE-code needs to be disclosed.
- To address a more international audience, the summary description now as to the be presented in German and English and will be published in both languages on the FCA's website.
3. Market data
The FCA seems to require more precise market data, especially as in respect to estimates. Consequently, notifying Parties shall be prepared to provide data on their own market positions and those of their main competitors. This will place a greater burden and costs on those companies, which have not large resources for collecting and analyzing market data at their disposal.
4. Other data requirements and more changes
For the new transaction value threshold (for which the FCA together with the German BKA published a specific guideline in July 2018), specific information on the consideration and the domestic activities of target must be presented as well as the business strategy for the next three years.
Great emphasis is placed on market definitions and documents supporting it, clearly showing in the extended list of documents required.
Technically, the FCA points out the requirement to file the notification via the Austrian electronic legal communication system ("ERV") and the recommendation to present a "waiver" - for which a form is supplied - in case of multi-jurisdictional mergers that are filed with multiple national authorities and/or the European Com-mission.
Even in the past, the preparation of merger filings in Austria required quite some work and expertise. While the substantive law and its application remain unchanged, the preparation of sufficient data and documents may become more complex and challenging. All Parties are well advised to follow the respective forms as published by the FCA and the extensive practice attached thereto.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.